IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF SEPTEMBER, 2017 PRESENT THE HON’BLE MRS. JUSTICE K.S.MUDAGAL AND THE HON’BLE MR. JUSTICE B.A.PATIL CRIMINAL APPEAL NO.914/2012 (C) BETWEEN:
Shekarappa S/o Giddaiah Aged about 50 years Coolie, R/o Bilekallu Kasaba Hobli Tq. & Dist: Chikmagalur – 577 101 …Appellant (By Sri C.V.Sheelavant, Advocate) AND:
State by Rural Police Chikmagalur Represented by State P.P. High Court of Karnataka Bangalore – 560 001 …Respondent (By Sri Vijaykumar Majage, Addl. S.P.P.) This Crl.A is filed Under Section 374(2) Cr.P.C by the Advocate for the Appellant/Accused praying that this Hon’ble Court may be pleased to set aside the Judgment dated:7/9.03.2009 passed by the S.J. & P.O. FTC-I, Chikmagalur in S.C.No.59/2008- convicting the Appellant/Accused for the offence P/U/S 302 of IPC. The Appellant/Accused is sentenced to imprisonment for life and pay fine of Rs.3,000/-, in default to payment of fine he shall undergo further S.I for one year for the offence P/U/S 302 of IPC.
This appeal coming on for final hearing this day, K.S.MUDAGAL J., delivered the following:
JUDGEMENT This appeal of the accused arises out of the order of conviction and sentence passed by the Sessions Judge and Presiding Officer Fast-Track Court-1, Chikmagalur in SC No.59/2008.
2. The appellant is the accused before the Trial Court. Chickmagalur Rural Police charge-sheeted him in Crime No.3/2008 for the offence punishable under Section 302 of the Indian Penal Code, 1860 (Hereafter referred to as ‘IPC’, for short).
3. The case of the prosecution in brief is as follows: That on 2.1.2008 at 10PM, in his house situated at Bilekallu village of Chikmagalur Taluk, the accused assaulted his wife Gangamma with sickle and tried to commit her murder. The injured Gangamma was shifted to Government Hospital, Chikmagalur and from there to Government Hospital, Hassan where she died at 1.30AM.
4. On filing the charge sheet the Magistrate registered the case in CC No.520/2008, took cognizance and committed the case to the Sessions Court. The Sessions Court tried the accused for the charge for the offence punishable under Section 302 IPC. The prosecution in support of its case examined PW.1 to 17 and got marked Exhibit P.1 to P.13 and MOs.1 to 8. The Sessions Court examined the accused under Section 313 of the Cr.PC. He did not file any defence evidence nor did he adduce any evidence. However, he got marked Exhibit D.1, a portion of the statement of PW.9 by way of contradiction.
5. The Trial Court after hearing the parties, by the impugned order convicted the accused for the offence punishable under Section 302 IPC and sentenced him to life imprisonment and fine of Rs.3,000/- on the ground that the case of the prosecution is proved by the evidence of the sole eye witness PW.1 and res gestae witnesses PW.3 and PW.7 to PW.10 and the evidence of other witnesses.
6. Sri C.V.Sheelavant, learned Counsel for the appellant seeks to assail the impugned judgment and order on the following grounds:
(i) There are improvements in the evidence of the alleged eye witness PW.1;
(ii) PWs.3,6 and 10 have not supported the prosecution case;
(iii) All the witnesses named by PW.1 in the FIR are not examined;
(iv) In the complaint Ex.P.1, the name of PW.3 is not figured.
7. Sri Vijayakumar Majage, learned Additional State Public Prosecutor seeks to sustain the impugned judgment and order on the following grounds:
(i) PW.1 the daughter of the accused himself is the eye-witness to the offence and she is unbiased witness;
(ii) The evidence of PW.1 is corroborated by the evidence of PWs.3 and 7 to 10, who come to the scene of occurrence immediately after the incident;
(iii) PW.1’s evidence is further corroborated by the evidence of other witnesses;
(iv) The conduct of the accused absconding from the scene of occurrence proves his guilt.
8. Some of the undisputed facts of the case are as follows:
That the accused is the husband of the deceased Gangamma and PW.1 and PW.4 are his daughter and son.
PW.9 is the son of the elder brother of the accused. The accused was living with his wife and children in the house in Bilekallu village which is the scene of occurrence. Gangamma died homicidal death due to the homicidal injuries. She was first shifted to Government Hospital, Chikmagalur and from there she was shifted to Government Hospital, Hassan and there she died. Immediately after the incident, the accused was not found in the house and he did not file any complaint about the death of his wife. PW.3 and 7 to 10 are the neighbourers of the accused and their house is situated around the scene of occurrence. At the time of the incident, PW.1 was prosecuting her D.Ed.
9. PW.1 is the eye witness. In her complaint as well as in evidence she states that the accused was addicted to alcohol and every day he used to come home drunk and quarrel with Gangamma and assault her. She states that on 2.1.2008 at 10p.m., her brothers Pradeep and Kiran had gone to irrigate the paddy land. She further states that the accused as usual came home drunk, quarrelled with her mother Gangamma and assaulted her mother with a sickle on head and stomach and other parts of her body. She further stated that when she raised alarm, the accused dropped the weapon in the house and ran away. She has stated that on listening to her alarm, the neighbours Chikkaiah, Vasanthamma, Gangamma, and others came to the spot and within a short time, her brothers, her senior uncle Nanjappa and relatives rushed to the spot and then they shifted the injured to Chikmagalur and from there to Hassan and her mother died at 1.30a.m.
10. Since the accused, deceased and PW.1 are the family members who reside in the same house, the presence of all the three at the scene of occurrence at that time of occurrence of the incident is natural. In her cross- examination PW.1 has spoken consistently with her complaint and nothing worth is elicited in the cross- examination to impeach her evidence. The only suggestion made to her is that because of her affection towards her mother, and disaffection towards the accused she is deposing falsely, which she has denied. The other suggestion made to her is that on 2.1.2008 the accused was not present in the house, but in his examination under section 313 of the CrPC, no such case is made out. It is not even the case of accused that PW.1 had any ill-will against him. Nothing is elicited to show that if at all the accused is not the culprit, why PW.1 shields the real culprit.
11. The further evidence relied by prosecution is that of PW.3 and 7 to 10 who come to the scene of occurrence listening to the cries of PW.1. PW.3 and PW.7 and PW.10 are the neighbours of the accused. It is not even disputed that they stay at a distance where the happenings in the house of the accused is audible to them. PWs.3,7, 9 and 10 consistently deposed that on 2.1.2008 at about 9.30 a.m. they heard the accused quarrelling with his wife and thereafter they heard the cries of PW.1 and rushed to the spot and found the deceased Gangamma lying on the floor with bleeding injuries. They also state that PW.1 told them that her father/accused assaulted Gangamma with sickle and ran away. PW.3 and PW.10 even state that they saw the accused running away from the house.
12. It is no doubt true that PW.8 has turned hostile.
PW.8 is none else but the husband of PW.3. It is not his case that on the date of the incident, he was not in his house. In his cross-examination by the prosecution, he states that himself and the accused were on good terms. That makes out the reason for his turning hostile. In his cross-examination he admits that when himself and his wife were sitting in front of their house, they saw the accused getting into his house and heard he quarrelling with his wife. He also admits that he heard the cries of Gangamma and PW.1 and when they rushed towards their house, he found the accused moving out towards Chikmagalur road and in the house, he found the victim Gangamma in the pool of blood. After saying so, he denies that. It is to be noted that immediately after the incident, the names of these witnesses are figured in the complaint Ex.P.1. Thus there are no reasons to disbelieve that PWs.3 and 7 to 10 rushed to the spot immediately after the incident and PW.1 revealed them the incident.
13. The evidence of PW.1 and PW.7 to PW.10 is further corroborated by the evidence of PW.4, the son of the deceased. On learning about the incident, he comes to the spot. He says that on listening to the commotion from his house, he rushed there and found his mother in the pool of blood, by that time his senior uncle Nanjappa and neighbours had gathered in the house and PW.1 revealed him about the incident. He speaks to the presence of his neighbours and nothing is elicited to satisfy why PW.4 being the son of the accused falsely implicates him. PW.4 denies the suggestion that because of his love towards his mother and because the accused was making galata against his mother and due to the threats, a false case is filed against the father and he is deposing falsely. His evidence is not impeached.
14. The evidence of all these witnesses is further corroborated by the evidence of PW.11, Casualty Medical Officer of Chikmagalur Government Hospital. The incident is said to have taken place at 10P.M. PW.11 states that the victim was brought to the hospital in Chikmagalur on the same day at 10.45PM by her relatives and others with a history of assault by Shekharappa her husband at 10PM by the Machete. Within 50 minutes, the name of the accused/appellant as well as the weapon of offence are figured in MLC Register, the extract of which is produced at Exhibit P.8. Within such short span of time, there is no scope for any concoction or false implication. In the cross- examination of PW.11, it is not even denied that such history was given before her.
15. Thus the evidence of the sole eye witness PW.1 is corroborated by the evidence of PWs.3 and 7 to 10 the neighbours, PW.4 the son of the accused, the medical witness PW.12 and the evidence of the Police witness/Investigating Officer. The Trial Court appreciating the aforesaid evidence and the circumstances has rightly accepted that the evidence adduced in support of the charge is cogent, consistent and reliable and recorded the conviction.
16. So far as the contention that there are improvements in the evidence of PW.1 it is settled law that FIR is not the encyclopedia and it is enough if the material aspects are stated in the complaint. The witnesses/complainant can speak to other peripheral aspects during the course of evidence. Only on that ground, the evidence of the complainant cannot be thrown out of the board. So far as the contention that the name of PW.3 does not find place in the FIR, it is to be noted that PW.1 while filing the complaint was in the trauma of witnessing her mother’s homicidal death in the hands of her father. Therefore she cannot be expected to narrate everything in the complaint very meticulously. Moreover, in the complaint, she has stated that listening to her cries PWs.7 and 8 and other neighbours came to her house.
17. Regarding non-examination of scribe of Exhibit P.1, P.W.1 states that the complaint Exhibit P.1 is scribed by Srinivas. It is true the prosecution has not cited him as a charge-sheet witness. There is no rule that the complaint shall be scribed by the complainant himself/herself, otherwise that shall be disbelieved. The need of examining the scribe arises only if the complainant disowns the complaint. Therefore, the failure of the Investigating Officer to cite the said Srinivas as charge-sheet witness or his non- examination is not fatal to the case of the prosecution.
18. When there is an eye witness, the circumstance of motive loses any importance. Even otherwise the evidence on record shows that the accused was boozer and he used to abuse his wife physically. The evidence on record shows that the weapon of offence is seized from the scene of occurrence immediately. The evidence of the eye- witness is corroborated by the evidence of other res gestae witnesses and the circumstance of recovery of the weapon and the conduct of the accused absconding. Based on that the Trial Court has rightly recorded conviction and sentenced the accused. This court does not find any ground to interfere with the said order. Therefore, the appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE nv