IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 3RD DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE B. A. PATIL CRL.A. NO.1216/2013 (C) BETWEEN SHIVA KUMAR S/O MILL NARSAPPA 33 YEARS, R/AT KODIPALYA MALLEKAVU MAJARA KORATAGERE TALUK TUMKUR DISTRICT TUMKUR – 572 101 ... APPELLANT (BY SRI. M. SHASHIDHARA, ADV. AND SRI. SOMASHEKHARA HARVI, ADV.) AND STATE OF KARNATAKA KODIGEHALLI POLICE STATION REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001 ... RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PARYING TO SET ASIDE THE ORDER DATED 3.4.2013 PASSED BY THE P.O., FTC-V MADHUGIRI IN S.C.NO.21/12 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC ETC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant/accused has called in question the judgment of conviction and order of sentence passed by the 5th Fast Track Court at Madhugiri, in S.C. No.21/2012 dated 03.04.2013 in convicting the appellant/accused for the offence punishable under section 302 of IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.10,000/- with default sentence of Rigorous Imprisonment for two years.
2. We have heard the arguments of Sri.
Somashekar Harvi and Sri. M. Shashidhar, the learned counsels for the appellant/accused and also the learned Addl. SPP for the respondent-State.
3. Learned counsel for the appellant has submitted two fold arguments before the court. He contended that, the prosecution itself has not proved the case against the accused beyond reasonable doubt so as to attract the provision of Section 302 of IPC. The trial Court has relied upon the evidence of the sole eyewitness to the incident to draw an inference against the accused to convict and sentence him for the offence punishable under section 302 of IPC. When the evidence of the so-called sole eyewitness (PW.6) is only available, the court has to meticulously examine the evidence of that witness with the supported surrounding circumstances so as to come to such a conclusion to convict the accused, but that has not been done by the trial Court. Therefore, no other materials are available except the said eyewitness’s version and also recovery of a stone which was stated to have been used to assault the deceased, at the instance of the accused. Therefore, the learned counsel contended that, the accused is entitled for acquittal.
4. Alternatively, the learned counsel for the appellant/accused has argued before the court that, on considering the whole circumstances of the case and also even accepting the eyewitness’ s version, it would clearly show that there was no premeditation by the accused in order to cause the death of the deceased and it was due to sudden quarrel at the spot and as a result of such an unexpected and instantaneous quarrel, the accused has committed such an offence, and therefore, the offence would not fall under Section 302 of IPC, but the offence may fall under Section 304 of IPC. He has also submitted that, the deceased was no other than the brother of the accused, therefore, considering the close relationship between the parties that, a lenient view may be taken. He further submitted that, the accused has already been in jail for more than seven years and hence, the extent of the period of imprisonment already undergone by him may be treated as the punishment to him. On these submissions, the learned counsel has pleaded that, an appropriate judgment may be passed.
5. The learned Addl. SPP submitted that, there is a strong evidence of the eyewitness (PW.6), who is no other than the son of the accused. He has deposed before the court that, the accused has mercilessly assaulted his brother, deceased Nagaraju and caused his death. Therefore, no leniency should be shown to the appellant/accused and therefore, there is no room to interfere with the judgment of conviction and sentence passed by the trial Court.
6. In the wake of the above said submissions, we have carefully examined the evidence adduced by the prosecution against the accused and also the judgment of the trial Court.
7. On careful perusal and re-evaluation of the evidence on record, it is seen that, -
7.1 PW.1-Hanumantharayappa is the father-in- law of the accused, who lodged a report as per Ex.P1 and identified MO.1 (Stone) and of course, he is a hear- say witness sofar as the incident is concerned. He received information from PW.6. He also identified the clothes of the deceased under Ex.P3 (Seizure Mahazar).
7.2 PW.2 -Thimmaraju is the resident of the same village, where the deceased was residing. But, no incriminating material is available in the evidence of PW.2 except he gone to the spot and saw the dead body.
7.3 PW.3-Subbarayappa is the relative of the deceased, who is no other than the paternal uncle of the deceased and he is also a hear-say witness, as who got information from PW.6, who is the son of the accused, about the incident. He also identified MO.1 (size stone) and he also states about the shifting of the injured to the Hospital.
7.4 PW.4-Manjunatha is the relative of the accused, who is no other than the Brother-in-Law of the accused. He has stated that, he has seen the deceased and he stated that, after sustaining injury, the deceased was not in a position to speak till his death.
7.5 PW.5-Papamma is no other than the sister of the deceased. She states that, she received information about the incident from PW.6, the son of the accused. After seeing the incident, he immediately informed PWs. 3 & 5.
7.6 PW.6-Ravi Teja is a star witness to the prosecution. He is an eye-witness to the incident, who is no other than the son of the accused. After seeing the incident, he immediately informed PWs. 3 & 5.
7.7 PW.7-Shivanna is the panch witness to Ex.P2 (spot Mahazar), under which the Police have seized MO.1 (stone), which was alleged to have been used by the accused to assault the deceased.
7.8 PW.8-Lakshmidevi is the wife of the deceased, who also states that, she received information from PW.6, who has seen the incident.
7.9 PW.9-M.S. Venkatesh is the panch witness to the inquest marked at Ex.P5 (Inquest mahazar).
7.10 PW.10-Dr.Rathnavathi, who has treated the injured as per Ex.P6, who stated to have furnished the extract of the MLC register to the police;
7.11 PW.11-Dr. S. Rudramuthy is another doctor, who conducted post-mortem examination and furnished Ex.P12 (post-mortem report). Ex.P13 is the opinion with regard to the Stone (MO.1) alleged to have been used by the accused to assault the deceased.
7.12 PW.12- K.V. Kallaiah, ASI, who stated to have registered a case on the basis of Ex.P1 and dispatched the FIR (Ex.P14) to the court and also went to the spot and drew-up mahazar as per Ex.P2 (spot panchanama) and seized MO.1 (Stone);
7.13 PW.13-Satyanarayana Kudur, Dy.S.P (CID) is the Investigating Officer in this case.
8. On careful re-evaluation of the entire material on record, of course the witnesses-PW.1, PW.3, PW.4, PW.5 and PW.8 are kith and kin of the deceased as well as the accused. According to their evidence, they received the information about the incident from PW.6-Ravi Teja. It is worth to refer here the evidence of PW.6 as to what he has actually seen and what information he has given to the above said witnesses.
9. According to the prosecution, it is the case of the prosecution that the accused is no other than the brother of the deceased. According to the story of the prosecution, on 09.09.2011 at about 10.00 p.m., the accused –Shivakumar had been to the house of PW.1 in order to attend the Gowri Festival and on that particular day, at about 11.30 p.m., the accused came to the house consuming alcohol and started quarrelling with his wife Ramakka, who is no other than the daughter of PW.1. The said Ramakka questioned the accused as to from where he got money to consume alcohol. In that context, the accused and his wife quarreled with each other and thereafter, the accused took his two children to go to his village. Accordingly, the accused took his children by name Ravi Teja and Sannappi and went from the house at 12.30 in the night on 09.09.2011. It is the further case of the prosecution that, the deceased-Nagaraju is the co-brother of the accused and Ramakka is the wife of the accused – Shivakumar. Actually after receiving said information that the accused left the house along with his two children in the night hours, after quarrelling with his wife, the deceased Nagaraja went to the accused to console and request him not to take the children with him at that night hours to his village, and he requested him to come back to the house of PW.1. In that context, there was a quarrel between the accused and the deceased Nagaraja and in that context, as the accused was fully drunk, he abused the deceased in filthy language and in fact he assaulted him on his check, due to which, the said Nagaraja fell down and immediately the accused took up a stone which was lying nearby and assaulted on the left side portion of the head of the deceased. The deceased sustained bleeding injury and he was admitted to the hospital and thereafter, on 13.09.2011 after four days, he succumbed to the injury sustained by him. The police though at the earlier stages registered a case in Crime No.104/2011 for the offences punishable under Sections 323, 504, 506 and 307 of IPC, but subsequently, after the death of the deceased, converted the said case for the offence punishable under Section 302 of IPC by informing the same to the jurisdictional court.
10. In order to prove the above said allegations, as we have already noted above, the prosecution has mainly relied upon the evidence of PW.6 –Ravi Teja. Of course, he is the sole eye-witness to the incident. The court has meticulously examine the evidence of this witness (PW.6) and he has categorically stated that, he was with the accused at that particular time and date. On that particular day, the accused had taken this witness and as well as his brother (Sannappi) at about 12.00 hours in the night to go to his village. At that time, the deceased Nagaraja came near the peepal tree and started requesting the accused. The accused also started quarrelling with the deceased and caught hold the shirt color of the deceased and assaulted on his cheek. Immediately, the deceased Nagaraja fell down and the accused at that time, threw a size stone on the head of the deceased and thereafter, the accused ran away from the spot. Immediately, this PW.6 (Ravi Teja) went back to the house of PW.1 and informed PWs. 1, 3, 4, 5 & 8 so far as the above incident is concerned.
11. In the course of cross-examination of PW.6, nothing worth has been elicited so as to show that this witness was tutored. However, it is forthcoming in the evidence that, even prior to the incident, the accused and deceased were not happy with each other. It was also elicited that, on the date of incident also the accused was fully drunk and in fact the accused has secured alcohol through this witness and consumed the same. It was suggested to PW.6 that, he was not an eye-witness to the incident, but he denied the said suggestion and on the other hand, he has stated that, after his father threw the size stone on the head of the deceased, this witness ran away from the spot. Except this, nothing has been elicited from the mouth of this witness. Therefore, there is no reason as to why this witness has to be disbelieved. He is no other than the son of the accused. He is the last person to tell lie before the court so as to send his father behind the Bars.
12. In this context, it is worth to refer here a decision of the Hon’ble Apex Court reported in AIR 2008 SC 1842 [Golla Yelugu Govindu Vs. State of A.P.], where in it has been observed that,-
“The evidence of the child witness is not required to be rejected per se; but the court as a rule of prudence consider such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.”
13. As we have already stated, the evidence of all the above said witnesses is not disturbed during the course of cross-examination and there is no material to show that the child witness-PW.6 (Ravi Teja) has been tutored and he is falsely implicating his own father into the crime. Therefore, there is no reason for us to disbelieve the evidence of PW.6. Even the evidence of PWs. 1, 3, 4, 5 and 8 is also reliable, because they are the close relatives of the deceased and their natural conduct shows that, they never say that they are eye- witnesses to the incident, but they all say that they received information from PW.6. The immediate conduct of PW.6 shows that immediately and naturally after the incident he went and informed the same to the other witnesses. In this context, under Section-6 of the Indian Evidence Act, the evidence of all the above said witnesses also play a dominant role. Therefore, looking to the above facts and circumstances of the case, there is no dispute with regard to the death of the deceased, who died due to the injuries sustained by him. The Doctor (PW.11), who conducted post-mortem examination as per Ex.P12 has categorically stated that the deceased died due to the injuries sustained to his head and immediately after the incident, a report was lodged as per Ex.P1 by PW.1, who is no other than the father-in-law of the accused. There is no reason to disbelieve the evidence of PW.11 also, though he has not fully supported the case of the prosecution.
14. In the above facts and circumstances, there is a strong evidence of child witness- PW.6 (Ravi Teja) available to the prosecution and the sequence of events also appears to be very natural as per the evidence of the other witnesses, as noted above. Hence, we do not find any strong reasons to disbelieve the evidence of the prosecution witnesses.
15. Now the next question arises that, whether the offence falls under Section 302 of IPC or 304 Part-II of IPC?
16. As argued by the learned counsel for the appellant, it is evident from the records that, the relationship between the parties are so close. The deceased is no other than the co-brother of the accused and as well as the other witnesses who are examined before the court are also the close relatives. The nature of incident that has been taken place also to be borne in mind by the court while sentencing the accused. The circumstances reveal that, it is a sole unexpected and unpleasant situation and the said incident has taken place in the life of the accused and the deceased unfortunately. There is absolutely no allegation against the accused that, he is an anti-social element and at any point of time he indulged himself in any of the illegal activities. Further, there are no allegations against the accused with regard to previous bad antecedents in any manner.
17. Looking to the factual aspects of this case and even considering the evidence of PW.6-Ravi Teja and other witnesses, it is clear that on that particular date, the accused was fully drunk and in fact, he quarreled with his wife and suddenly he took his two children and moved towards his village in the night hours. This clearly discloses that the accused was fully disturbed, perhaps because of the quarrel between himself and his wife and in that situation, he left the house of PW.1 along with his two children to go to his village. In this context, the deceased came across and tried to convince the accused and to take him back to the house of PW.1. But, the accused refused to go back. It appears in the evidence of PW.6, the quarrel taken place between the accused and the deceased though not in so many words has been stated nor elicited in the cross-examination as to what exactly the verbal altercation taken place, but the circumstance show that, after the quarrel only, the accused has assaulted on the cheek of the deceased and on sustaining such a blow, he fell down and the accused threw a size stone on his head. Therefore, there was no premeditation in the mind of the accused to assault the deceased with such a size stone and cause his death and more over at that moment, he might have not known that, the death of the deceased may occur and it was also not in his mind or there was no any intention to the accused to assault the deceased with a stone. Therefore, we cannot straightaway in a straightjacket manner impute the intention that the accused had an intention to kill the deceased. Further more, the warranting circumstances also show that while going out from the house of PW.1, the accused never thought that, the deceased may come to stop him going to his village and ask him to come back to the house of PW.1. He never thought, that he may get a stone on the way to assault the deceased. Therefore, all these circumstances clearly go to show that in a heat of passion and in a sudden quarrel with the deceased, the accused might have lost control of his mind due to his temperament and perhaps the surrounding circumstances have prompted him to assault the deceased without thinking or foreseeing the consequences of his act. Therefore, considering the above said facts and circumstances, we are of the opinion that, there was no intention and only knowledge might be there in the mind of the accused that the said blow may cause the death of the deceased. Therefore, in our opinion, the above proved facts would not fall under Section 302 of IPC, but it would fall under Section 304 Part – II of IPC, for which the accused is liable to be convicted and sentenced.
18. The learned counsel has also brought to our knowledge that the accused was arrested on 10.9.2011 and he was produced before the Magistrate on 11.09.2011 and since then he has been in custody.
However, he was on bail for a period of two months only.
19. Considering the languity of the period of imprisonment already undergone by the accused, we feel it just and necessary to consider the period of imprisonment already undergone, as a substantive punishment that can be imposed. However, we should also bear in mind the situation of the family members of the deceased Nagaraja, who lost his breath in the incident in question. Therefore, we would like to impose/award compensation so as to acquit the accused and to benefit the family of the deceased in this regard. If we award a sum of Rs.50,000/- (Rupees Fifty Thousand only) as compensation, it would meet the ends of justice.
20. With the above observations, we proceed to pass the following order:
ORDER The appeal is partly allowed. Consequently, the Judgment of Conviction and Order of Sentence dated 03.04.2013 passed by the 5th Fast Track Court, Madhugiri, in S.C.
No.21/2012, for the offence punishable under Section 302 of IPC, is hereby set aside. However, we convict the appellant/accused- Shivakumar for the offence punishable under section 304 Part-II of IPC and sentence him to undergo imprisonment for the period he has already undergone during the pendency of the case before the trial Court and as well as this Court.
The appellant/accused is ordered to deposit compensation of Rs.50,000/- (Rupees Fifty Thousand only) before the trial Court within six months from the date of his release. If, the said compensation amount is not deposited before the trial Court within the prescribed period, the trial Court is directed to take appropriate action to recover the same, as if a fine from the accused and pay the entire amount to PW.8-Laxmidevamma, the wife of the deceased-Nagaraj.
As this Court has imposed punishment of imprisonment to the accused for the period, which he has already undergone, he is ordered to be released forthwith, if he is not required in any other case.
The Registry is hereby directed to communicate this order to the concerned Jail Authorities forthwith, for release of the appellant/accused forthwith, if he is not required in any other case.
Sd/- JUDGE Sd/- JUDGE KGR*