IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF AUGUST 2019 PRESENT THE HON’BLE MR. JUSTICE B.A.PATIL AND THE HON’BLE MR. JUSTICE S.G.PANDIT CRIMINAL APPEAL NO.1863/2016 BETWEEN:
SHIVAPPA @ SHIVA S/O GANGAIAH AGED: 28 YEARS R/O GANDHI NAGAR MANCHENAHALLI VILLAGE GOWRIBIDANUR TALUK DIST:CHIKKABALLAPUR-562101. …APPELLANT (BY SRI.SUYOG HERELE E., ADV. APPOINTED AS AMICUS CURIAE) AND:
THE STATE OF KARNATAKA REPRESENTED BY CIRCLE INSPECTOR OF POLICE GOWRIBIDANUR CIRCLE GOWRIBIDANUR CHIKKABALLAPUR DIST.
NOW REPRESENTED BY THE S.P.P.
HIGH COURT BUILDING VIDHANA VEEDI BANGALORE-560 001. …RESPONDENT (BY SRI.I S PRAMOD CHANDRA, SPP-II) THIS CRL.APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C WITH A PRAYER TO SET ASIDE THE JUDGMENT AND ORDER DATED 30.11.2015 AND SENTENCE DATED 01.12.2015 PASSED BY THE I.ADDL.DIST. AND S.J., CHIKKABALLAPURA IN S.C.NO.25/2014- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S/ 324 AND 302 OF IPC AND ETC.
THIS CRL.APPEAL COMING ON FOR HEARING THIS DAY, B.A. PATIL. J., DELIVERED THE FOLLOWING: -
JUDGMENT The present appeal has been preferred by the appellant/accused challenging the legality and correctness of the judgment and order dated 30.11.2015 and sentence dated 01.12.2015 in S.C.No.25/2014 passed by the I Additional District and Sessions Judge, Chikkaballapura.
2. We have heard Sri. Suyog Herele.E, learned Amicus Curiae and learned Special Public Prosecutor-II for the respondent - State 3. Summary of the prosecution case is that the accused was addicted to alcohol and he was in the habbit of sitting in front of his house and used to abuse the public in vulgar language. Being fed up with the said act of the accused, the neighbours advised him many a times not to disturb them, in spite of such advise the accused continued his habit. In that light, on 25.09.2013 at about 6.30 p.m. accused as usual by consuming alcohol was abusing in vulgar language by sitting in front of his house. At that time, neighbour, the deceased Gangamma was sweeping in front of her house, she told him to go inside the house and not to make nuisance, since there were teenage daughters, who were studying in the house. Even in spite of such advice, the accused continued to abuse in vulgar language. The deceased told the accused that he will not mend himself and by saying so she came to beat him with the broomstick. The accused assaulted her with a broken club. Accused went inside his house, brought an iron rod and hit the deceased on her forehead causing fatal injuries and also causing injury on her right cheek. When the deceased Gangamma fell down, her husband and her two children came to her rescue. The accused assaulted them also and gave a threat to all the witness and went inside the house. Immediately the deceased was shifted to the hospital and on the way to hospital she died. On the basis of the complaint, a case was registered in Crime No.189/2013 and after completion of investigation, charge-sheet was filed against the accused.
4. The learned Magistrate took the cognizance and after completing the formalities, he committed the accused to Sessions Court. Sessions Court secured the presence of accused, took cognizance and framed charges. Accused denied the charges and he claims to be tried and as such trial was conducted. In order to prove its case, the prosecution got examined 19 witnesses and got marked 17 documents and 10 material objects. Thereafter the statement of the accused was recorded by putting the incriminating material as against him. He denied the same, he has not led any evidence and not marked any documents. After hearing the learned counsel for the parties, the Court below came to the conclusion that the material on record is co-gent and held that the offence committed by the accused is punishable under Section 302 of IPC and other offences and convicted the accused. Challenging the legality and correctness of the impugned judgment and order of conviction and sentence, the appellant/accused is before this Court.
5. The main grounds urged by the learned Amicus Curiae is that the Court below has not properly appreciated the evidence on record and has come to a wrong conclusion and wrongly convicted the accused. He further submitted that PW.1 - Narasamma has deposed in her evidence that the alleged incident has taken place on 25.09.2013 at 6.30 p.m., but the altercations started at about 4.30 p.m. and they went to police station and returned back and thereafter at about 6.30 p.m. the alleged incident has taken place. The said circumstances does not match with each other. He further submitted that PWs.1 to 4 are the eye witnesses and they are interested witnesses. Based on the testimony of the interested witnesses, the Court below has convicted the accused. It is his further statement that there are contradictions and omissions in the evidence of PWs.1 to 4 and the said aspect has not been properly appreciated.
6. Further, it is alternatively submitted by the learned Amicus Curiae that the alleged incident has taken place in a spur of moment with the deceased and the accused and without there being any intention or pre-motive, he has assaulted the deceased and the provisions of Section 302 of IPC is not attracted and at the most the alleged offence falls within the purview of Section 304 Part II of IPC. Thus he prays to allow the appeal and set aside the impugned judgment and order of conviction and sentence.
7. Per contra, the learned Special Public Prosecutor II strictly argued and submitted that the evidence of PW.10 - the Doctor and PW.13 - the Doctor, who conducted autopsy over the body of the deceased clearly goes to show that in the alleged incident deceased and PWs.1 to 3 have sustained injuries and are the eye witnesses, who have witnessed the incident. Ex.P8 – the post mortem report clearly goes to show that the deceased died due to the injuries suffered by her to the head and vital organs of the body. It is his further submission that the accused appellant used to consume alcohol and sit in front of his house and used to abuse publicly in vulgar language. Many a times neighbours advised him not to disturb them, in spite of that he continued his habit. On the fateful day the deceased advised him to go inside the house, but he abused her and when the deceased went and assaulted him with the broom stick, in the first instance, the accused assaulted her with the broken club and thereafter he went inside the house, brought a rod and assaulted her on vital parts of the body and caused her death. There are eye witnesses to the alleged incident and there is a strong motive to the alleged murder. After considering the material on record, the trial Court has rightly convicted the accused. On these grounds, he prayed to confirm the judgment and order of conviction and sentence of the trial Court by dismissing the appeal.
8. We have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
9. In order to prove the case of the prosecution, the prosecution got examined in all 19 witnesses. It is not in dispute that the offence committed by the accused is a homicidal death. The said death is a homicidal death has not been disputed and PWs.1, 2, 4, 5 and 9 have categorically stated about the injuries found over the body of the deceased and PW.13 - the Doctor, who conducted the autopsy over the body, has also categorically stated that the death was due to head injury and there was abrasion over forehead and deep lacerated wound over the left cheek and all injuries were anti-mortem in nature. He has also opined that death is due to cardio respiratory arrest, secondary injury to vital organ such as brain due to hit with hard long rod like object. All these material clearly go to show that the death of the deceased was an unnatural death. In this behalf prosecution has proved the fact of Homicidal death.
10. In order to prove the case of the prosecution that the accused was in the habit of sitting outside the house and used to abuse in filthy language in public, they got examined PWs.1 to 19. PWs.1, 2, 3, 4 and 5 have deposed in their evidence categorically that the accused by consuming alcohol used to sit in front of his house every day and abuse publicly in filthy language and many a times they have advised him in this regard not to do so, but he has not heeded to their advise and continued his habit. As on the date of the alleged incident he consumed alcohol and he has also abused the deceased and other family members and when she advised him to go inside the house as she had teen aged daughters, who were studying in the house, in that the alleged galata took place. In that light, the prosecution has established the fact that the deceased used to abuse in filthy language by consuming alcohol and the alleged incident has taken place in that light. In order to prove the prosecution case, the prosecution got examined three eye witnesses.
11. PW.1 - Narasamma is the injured eye witness, in her evidence she has deposed that on the date of the incident at about 6.00 p.m. the accused assaulted the deceased with iron rod on the head of the deceased and she fell down and when PW.1 went there to rescue her, the accused assaulted her with the same rod on her neck and later she was taken by the Police to Chikkaballapura hospital and she has filed the complaint and she has also identified MO.1 the iron rod. During the cross-examination of this witness all the suggestions made by defence counsel have been denied and nothing has been elicited to discard the evidence of this witness.
12. PW.2 – Kumari Amrutha is the daughter of the deceased, she has also deposed that her mother expired about nine months back and on the date of the incident, the accused was abusing her mother in filthy language by consuming alcohol and at that time the deceased assaulted the accused with broom stick and accused assaulted the deceased with a club and thereafter her mother went to the police station to give a complaint and the father of the said witness brought her back saying that they are not giving a complaint and at that time the accused brought an iron rod and assaulted her father on his cheek and later on his hand, her father became unconscious and fell down, and at that time the accused pushed her mother to fall on the ground and he pressed her and assaulted on her neck, cheeks and when PW.1 went there, he assaulted PW.1 and PW.5 and threatened her with life. He was also roaming by holding the said rod, thereafter the deceased was taken in ambulance to the hospital. During the course of cross-examination, the suggestion made to her having been denied, nothing has been elicited, so as to discard the evidence.
13. PW.4 - Kavitha is another eye witness, she is also the daughter of the deceased. She has also reiterated the evidence of PW.1 and PW.2, nothing has been elicited in this behalf to come to a different conclusion.
14. By going through the evidence of these three witnesses, it clearly goes to show that their presence at the place of incidence cannot be disputed because of the reason, that in the said incident PWs.1, 2 and 4 have also suffered with injuries and they have been treated by taking them to the hospital. When they are injured witnesses and presence is also 0proved, there is nothing do discard their evidence.
15. PW.10 – Doctor Kishore, who treated them has issued the wound certificate as per Exs.P5 and P6, if they are perused the case history is the alleged assault by Mr. Shivappa with rod at about 6.30 p.m. on 25.09.2013. The said records Exs.P5 and P6 clearly go to show that the said witnesses have suffered injuries at the hands of the accused and immediately they have been taken to the hospital and got treated. In the first instance, when they have been taken to the hospital entry has been made in the medical records, under such circumstances, the said records cannot be doubted and the presence of these three witnesses cannot be doubted. When the said witness have clearly stated about the overt acts of the accused/appellant stating that he was abusing in filthy language by consuming alcohol and when the deceased questioned and advised him not to do so, he assaulted in the first instance with a broken stick and thereafter went inside the house and brought an iron rod and assaulted on the head and other parts of the body. Even the post mortem report and evidence of PW.13 clearly goes to show that the deceased died due to the head injury suffered by her. There is corroboration in the evidence of eye witnesses and medical records.
16. In that light, the evidence produced by the prosecution is cogent, worthy and reliable. Looking from any angle, it substantiates the fact that it is the accused, who assaulted and caused death of the deceased. The trial Court after appreciating the material on record has rightly convicted the accused.
17. Though the learned Amicus Curiae alternatively argued that the provisions of Section 302 of IPC are not attracted as the accused had no motive to cause the death of the deceased, provisions of Section 304 Part II of IPC will be attracted. But the conduct of the deceased in the first instance, would indicate that he assaulted with a club and later went inside the house and brought an iron rod and assaulted the deceased. Evidence produced shows that PWs.1, 2 and 4 tried to rescue the deceased, he has assaulted them also and he pushed the deceased to fall on the ground and he pressed her head and assulted, that itself clearly goes to show that the accused was having an intention and pre-meditation to take away the life of the deceased. The conduct of the accused shows that he went inside the house brought an iron rod and assaulted the deceased. Even as could be seen the said incident has not taken place in a spur of a moment, so as to attract Section 304 Part II of IPC. There is long gap between first incident and second. In that light there is no force in the argument of the learned counsel so as to accept same. Looking from any angle, no good grounds have been made out by the learned Amicus Curiae so as to appreciate and interfere with impugned judgment and order of conviction and sentence of the trial Court. The impugned order of the trial Court deserves to be confirmed. Accordingly it is confirmed. We have carefully and cautiously gone through the judgment and order of conviction and sentence passed by the trial Court. There is no perversity or illegality in passing the said order. Trial Court after proper appreciation of the evidence has passed the impugned judgment and order. The appeal being devoid of merits is dismissed.
However, we appreciate and place on record the able assistance rendered by the learned Amicus Curiae. We direct the registry to pay a sum of Rs.10,000/- as honorarium to the learned Amicus Curiae for having assisted the Court.
Sd/- JUDGE Sd/- JUDGE NG* CT:bms