IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.789 OF 2010 BETWEEN:
Rangaswamy S/o. Nagappa, Aged about 33 years, Owner of Sri. Krishna Bakery, JCR Extention, 5th Cross, Chitradurga. ...Appellant (By Sri. B.S.Hadimani, Advocate) AND:
The State of Karnataka by Its State Public Prosecution, High Court of Karnataka, Bengaluru-560001. ...Respondent (By Sri. Divakar Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment of conviction and sentence passed against the appellant in case No.S.C.No.32/2007 dated:30.6.2010, passed by the Prl. District and Sessions Judge, Chitradurga. The appellant/accused convicted for the offence 326 and 504 of IPC and the appellant/accused is sentenced to undergo S.I. for a period of three years and also to pay fine of Rs.30,000/- in respect of the offence punishable under Section 326 of IPC and in default to pay the fine amount he shall undergo S.I. for a further period of nine months, for the offence punishable under Section 326 of IPC. And the accused/appellant is sentenced to undergo S.I. for a period of one year and also to pay fine of Rs.2,000/- in respect of the offence punishable under Section 504 of IPC in default to pay the fine amount, he shall undergo S.I. for a further period of three months, for the offence punishable under Section 504 of IPC. Both the substantive sentences shall run concurrently.
This Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT The appellant who was convicted in the Court of the Principal District and Sessions Judge at Chitradurga (for the sake of brevity hereinafter referred to as ‘trial Court’) in SC No.32/2007 by the judgment of conviction and order on sentence dated 30.06.2010 for the offences punishable under Sections 326 and 504 of the Indian Penal Code (for the sake of brevity hereinafter referred to as ‘IPC’) has preferred this appeal challenging his conviction for the offences.
2. The summary of the case of the prosecution is that on 04.09.2006 at about 5.45 am., in JCR extension, Chitradurga, while the deceased Hanumakka was picking the waste plastic papers in front of M/s.Sri Krishna Bakery, the accused who was the owner of the said Bakery objecting her for picking the rags from the said place abused her and assaulted her with a stick which he was possessing, upon her head and left hand and caused bleeding injuries to her. She was thereafter shifted to the District Hospital, Chitradurga by her sister’s son Eranna and one Gopi and was treated as inpatient.
3. Based upon her statement said to have given before the complainant police in the hospital, on the very same day, a complaint before the respondent police station in the Crime No.216/2006 came to be registered against the appellant for the offences punishable under Sections 504, 324 and 323 of IPC.
4. Thereafter, the injured Hanumakka is said to have been shifted to Chigateri General Hospital, Davanagere for higher treatment, after taking the opinion of the doctors in the said hospital, according to whom the injured had also sustained fractures of 3rd to 7th left ribs and fracture of right hand which injuries were grievous in nature, Section 326 of IPC came to be substituted in place of Section 324 of IPC. Subsequently the injured Hanumakka was said to have been discharged from the hospital from Davanagere.
5. However, on 14.09.2006, she was admitted to the District Hospital, Chitraduga again for further treatment. But, while under treatment on 04.10.2006 at about 1.55 pm., she is said to have died in hospital. Thus, Section 302 of IPC came to be substituted in place of Section 326 of IPC. Accordingly, the Investigating Officer has filed his final report against the accused alleging the offences punishable under Sections 504 and 302 of IPC against the accused.
6. The charges were framed against the accused for the said offences. Since, the accused pleaded not guilty, in order to prove the alleged guilt against the accused, prosecution has examined 20 witnesses from PWs.1 to 20 and got marked documents as per Exs.P1 to P25 and the material objects as per MOs.1 and 2. Neither any witness was examined, nor any document was marked as exhibits from the accused side. The trial Court in its impugned judgment found the accused guilty of the offences punishable under Sections 326 and 504 of IPC and sentenced him accordingly.
7. Heard the argument from both side.
8. Learned counsel for the appellant in his brief argument submitted that no witnesses have whispered the name of the accused as an assailant including the family members of the deceased. As such, mere relying upon the alleged dying declaration of the deceased by the trial Court convicting the accused was erroneous.
9. Learned High Court Government Pleader for the respondent in his argument submitted that PWs.3, 8 and 10 who were family members and very close relatives of the deceased and also eye witnesses have not revealed the entire facts of the case and for the reason best known to them, they have suppressed the truth. He further submitted that even in the absence of any support from any other material witnesses, the complaint given by none else than the deceased while she was in the hospital as per Ex.P13 and her dying declaration recorded by the Taluka Executive Magistrate as per Ex.P25 which aspects have corroborated by the evidence of PWs.13, 19 and 20 have proved the guilt of the accused beyond reasonable doubt.
10. In order to prove the guilt against the accused prosecution has examined twenty witnesses. PWs.1 and 2 though projected as panchas to the inquest panchanama as per Ex.P1, have not supported the case of the prosecution. They have stated that no such panchanama was drawn in their presence. Similarly, PW4 in whose presence the mahazar panchanama of the deceased was said to have been drawn also turned hostile to prosecution.
11. PW14 who was projected as pancha to the scene of offence panchanama as per Ex.P6 also turned hostile to the prosecution. In this way, none of the important or material panchanamas were supported by the alleged panchas in whose presence those panchanamas were said to have been drawn.
12. PW3 – Gangamma, the grand daughter of deceased Hanumakka, PW5 – Hanumakka, the daughter of the deceased Hanumakka. PW6 Haralappa, the son of the younger sister of the deceased. PW8 – Marappa, the younger brother of the deceased have in their evidences, except stating that the deceased has sustained injuries and later died while under treatment have not spoken anything about the alleged incident, much less, the role of the accused in the alleged incident. Even after treating all these witnesses as hostile and cross examining them, the prosecution could not get any support by any of these witnesses.
13. PWs.11 and 12 who according to the prosecution are the neighbours of the shop of the accused and were aware of the alleged incident also have not supported the case of prosecution, except stating that the Bakery in question which is M/s.Sri Krishna Bakery was run by the accused. About the alleged incident, neither of these two witnesses have spoken anything in favour of the prosecution.
14. The two important witnesses upon whom the prosecution was solely banking is PW7 – Gopi the alleged eye witness to the incident and PW9 – Eshwarappa, who is also another alleged eye witness according to the prosecution. It is the version of the prosecution that at the time of incident, both these witnesses were present and among these PW7 – Gopi, pacified the dispute and PWs.7 and 9 joined by PW3 – Gangamma, shifted the injured to the hospital. Interestingly, neither of these two witnesses ie., PWs.7 or 9 have supported the case of the prosecution to any extent. About the alleged incident, both these witnesses have expressed their ignorance.
15. Interestingly, among these two witnesses, PW9 - son of the younger sister of the deceased has stated that on the date of the alleged incident, in the early morning, the deceased had gone for a morning walk. Even the daughter of the deceased also stated that the deceased had gone for a morning walk. It is nobody’s case, not even that of the prosecution that in that early hours, the deceased had gone for a morning walk.
16. But, it is the specific case of the prosecution that deceased was a rag picker and waste plastic picker, from the dustbin which was said to be located in front of the Bakery of the accused. Interestingly, none of the family members and more importantly, PWs.9 and 10 have nowhere sated that the deceased was a rag picker and on the alleged date of incident also she was away from the home to pick up waste plastic and other articles. Thus, from any of these witnesses including the close relatives and the family members of the deceased the prosecution could not get any support.
17. The remaining evidence upon which the prosecution solely banks upon, so also, the trial Court has much relied upon is the alleged complaint said to have been given by PW13 and the alleged dying declaration as per Ex.P25.
18. PW13 – G.Naganna, the first Investigating Officer in the case has stated that while working as a Police Sub Inspector in the complainant police station on 04.09.2006 at about 7.30 am., after receiving the memo from the Government Hospital, Chitradurga, he visited the said hospital and recorded the statement of the injured as per Ex.P13 and submitted an FIR to the Court as per Ex.P14. He has also stated that on the same day, he proceeded to the place of offence as shown by PW9 – Eshwarappa and drew the scene of offence panchanama as per Ex.P6. Under the said panchanama, from the spot, he seized a wooden stick as per MO.1. He has identified the wooden stick. Interestingly, nowhere in his evidence, the witness has stated the name or identity of the alleged injured whose statement he is said to have recorded as per Ex.P13. However, Ex.P13 reveals that it is the alleged injured Hanumakka. The denial suggestion made to this witness has not been admitted as true by him.
19. PW19 – H.M.Revanasiddappa, in his evidence has stated that while working as Tahsildar of Davanagere Taluk, on 14.09.2006, based on the information received by him from Chitradurga Town police station, he went to the hospital and ascertained from the doctor about the fitness of the injured to give her statement. He recorded the statement of the injured Hanumakka, w/o Shekarappa as per Ex.P25. He has also stated that the injured stated to him that on 04.09.2006, at about 5.45 am., while she was picking up glass and other waste articles near the Bakery of the accused, the accused objected to the same and assaulted her with a stick and also with his leg. He has also stated that while he was recording the statement of the injured, the doctor by name Dr.Tulasi Naika was also present. The witness was subjected to a detailed cross examination wherein he adhered to the original version.
20. PW20 Dr.Tulasi Naika has stated that on 14.09.2006, as a doctor in C.G.Hospital at Davanagere he was present while the Tahsildar of Davanagere recording the dying declaration of the injured Hanumakka. In that regard he has ascertained the condition of the patient to give statement before commencement of recording the statement of the injured and after recording the statement also he has confirmed the fitness of the injured. Witness has identified his endorsement and signature as Per Ex.P25. He was also subjected to a thorough cross examination wherein, he adhered to his original version.
21. The dying declaration which is marked at Ex.P25 is in a formatised manner, wherein, the person recording the dying declaration (in the instant case the Tahsildar of Davanagere) has filled the answers said to have been given by the injured to those pre-printed questions in the format. In the said dying declaration, the injured is shown to have stated that on 04.09.2006, in the morning while she was picking waste articles / rags in front of the Bakery, the owner of the said Bakery abused her and assaulted her with a stick.
28. A reading of the dying declaration on its facial value prima facie though appears that the deceased must have given the statement as recorded in Ex.P25 before PW19 and in the presence of PW20, but a thorough scrutiny of the above document in the light of Ex.P13 reveals that undisputedly, the victim was an illiterate lady who put her left thumb mark as her identification mark and was also an aged lady of 60 years old. In the alleged complaint at Ex.P13 which according to PW13 the first Investigating Officer, was the statement given by the very same lady, she shown to have named the assailant as Rangaswamy and he was the owner of Sri Krishna Bakery. Whereas, in the dying declaration, at Ex.P25, the injured is shown to have stated in clear terms that she does not know the name of the assailant. The dying declaration and the complaint since lack uniformity in the description of the alleged accused, more particularly about his name, both of them cannot be simultaneously totally true.
29. If the complaint is taken as the one stated by the complainant herself and recorded as was stated by her then, it has to be considered that the accused knew the name of the alleged owner of Sri Krishna Bakery as Rangaswamy who incidentally is the accused in this case. At the same time, if the statement recorded by the Taluka Executive Magistrate in the form of a dying declaration Ex.P25 is taken to be the true statement of the accused, then she does not know the name of the accused. Both PW13 as well PW19 have stated that they have recorded the statement of the victim as narrated by her.
30. It is not even the case of the prosecution that at the earlier, when her complaint was recorded as per Ex.P13, she did not know the name of the accused. However, in the intervening gap of more than 10 days, she came to know about name of the accused. The case is otherwise that at the earliest point of time, i.e., immediately after the incident on the very same day, the accused is shown to have known the complete identity of the accused including his name, whereas, in the subsequent dying declaration, she has stated that she does not know the name of the accused. Even with respect to the alleged address of the accused also, the same analogy applies.
31. In the complaint, she is shown to have described the address of the accused as the owner of the M/s Sri Krishna Bakery situated on the main road of JCR Extension, Chitradurga. Whereas, in the dying declaration at Ex.P25, she has only stated with respect to his address as the Bakery and Condiments running two shops. Thus, at the earliest point of time, when she is shown own to have known the entire address of the accused, has subsequently shown to have stated that she does not know his address. This creates a strong doubt that either of these documents, complaint or the alleged dying declaration must be not the true statement of the accused.
32. In such a situation, where two statements said to have been given by the same persons cannot be accepted at their facial value in their entirety as one among them was found to be not wholly believable then the benefit of the same should go to the accused.
33. Secondly, as already observed, the alleged incident has taken place on 04.09.2006 and the death of the injured was on 04.10.2006, thus exactly, there was a gap of a month. Even according to the prosecution, after her treatment at the General Hospital at Chitradurga, she was discharged from the hospital and had been to her house. It is only on 14.09.2006 she again came to the hospital with some complaint. Thus, in the intervening period, she was in her house amidst her family members including her son, daughter and close relatives.
34. However, all those witnesses including her son, daughter, niece and everybody have expressed their ignorance, as to how the alleged incident has taken place, including the alleged involvement and the alleged role of the accused in the incident. Had really the accused knew the identity of the person said to have assaulted her, it was expected of her disclosing the same atleast to her family members in such an event, those family members would have supported the case of the prosecution. However, in the case on hand, as already observed, the daughter, more than daughter, nephews, niece who also included PW9 Eshwarappa, the alleged eye witness have all turned hostile to prosecution and have gone to the extent of saying that they did not know who assaulted the deceased. Thus, the deceased who is said to have stated before PW13 as per Ex.P13 and before PW19 as per Ex.P25 creates further doubt and those statements they cannot be taken as reliable and trust worthy.
35. Lastly, it also cannot be ignored of the fact that the prosecution could not able to place any document on record to show the alleged relationship between Sri Krishna Bakery and the accused. Had really the accused being the owner of the said Bakery running the said Bakery at the alleged point of time, nothing had prevented the Investigating Officer from procuring any documents in that regard including his Trade Licence or Commercial Tax Licence etc., to show that the accused was running the business.
36. The mere oral statements of PWs.11 and 12 that the accused was running a Bakery adjoining to their shops cannot be a fool proof and totally trustworthy statement to believe and act upon. Even after assuming that the accused was the owner of the said Bakery, still in the absence of any specific evidence to show that the alleged incident has taken place in front of his Bakery only and that at the time of alleged incident which is said to be at 5.30 am., accused was present in the spot it is not safe to bank upon the sole alleged complaint at Ex.P13 and the dying declaration at Ex.P25.
37. However, the trial Court without noticing the lacunas that have crept in Exs.P13 and Ex.P 25 has accepted those two documents on their facial value and has jumped to a conclusion that the evidence of PWs.P19 and 20 corroborates Ex.P25 and proves the guilt of the accused for which the accused was convicted.
38. In the light of the analysis made above, the said finding of the trial Court has proved to be an erroneous finding. Consequently, the benefit of doubt that has crept in the matter requires to be extended to the accused. Consequently, the judgment of conviction passed by the trial Court deserves to be set-aside and the accused has to be acquitted from the alleged offence giving him the benefit of doubt. Accordingly, I proceed to pass the following;
ORDER (i) The appeal is allowed.
(ii) The judgment of conviction and order on sentence passed by the Court of the Principal District and Sessions Judge at Chitradurga in SC No.32/2007 dated:30.06.2010 holding the appellant / accused guilty of the offences punishable under Sections 326 and 504 of IPC and sentencing him accordingly is set-aside.
(iii) Accused / appellant is acquitted of the offences punishable under Sections 504 and 326 of IPC. The bail bonds executed by the accused stands cancelled after the period of appeal and if the prosecution does not prefer any appeal on this judgment.
Registry to transmit a copy of this judgment to the trial court along with lower court records.
Sd/- JUDGE GH