IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF AUGUST, 2019 PRESENT THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA AND THE HON’BLE MR. JUSTICE ASHOK G NIJAGANNAVAR CRIMINAL APPEAL No.1625 OF 2016 (C) BETWEEN:
Sri Howri Kethrol, S/o Pagwari, Aged about 29 years, Mundera Village, Jakabayi Post, Bathera Taluk, Sambalupur, Orissa. ... Appellant (By Sri Vivek S, Advocate) AND:
The State of Karnataka, By Bagalur Police Station, Bengaluru Rural District, Represented by State Public Prosecutor, High Court of Karnataka, Bengaluru. ... Respondent (By Sri Vijaykumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to set aside the impugned Judgment and order dated 26.02.2016 and sentence dated 09.03.2016 passed by the V Addl. District and Sessions Judge, Devanahalli in S.C.No.15023/2014 – Convicting the Appellant/Accused No.2 for the offence Punishable Under Section 302 Read with 34 of Indian Penal Code.
This Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT This appeal is preferred by the appellant-accused No.2 against the judgment of conviction and sentence passed in S.C.No.15023/2014 by the V Addl. District and Sessions Judge, Devanahalli, for the offence punishable under Section 302 read with 34 of IPC sentencing the accused to undergo imprisonment for life and to pay fine of Rs.10,000/- (Rupees Ten Thousand only), and in default of payment of fine to undergo imprisonment for a period of six months for the offence punishable under Section 302 read with Section 34 of IPC.
2. The prosecution case in brief is that the accused Nos.1 and 2 are the relatives and they were from Orissa State. They were working as Coolies in the brick factory owned by P.W.3-Nageshwara Rao at Bagalur Village. In the said factory, deceased-Vengaiah was working as Writer and Supervisor. On 17.02.2014 at about 10.15 a.m., Vengaiah was supervising the work of labourers and he directed the accused Nos.1 and 2 to do their work properly. On account of the direction issued by the deceased, both the accused got angry and they attacked him. Accused No.1 assaulted with reaper on the head of deceased-Vengaiah and accused No.2 assaulted on his head and face with brick piece. On account of the assault done by both the accused, deceased-Vengaiah sustained severe head injuries. Immediately, he was taken to the hospital, where the Doctor declared that he was brought dead.
3. On the complaint filed by P.W.1-Murali, who was present at the spot, the respondent Police have registered the case. On completion of investigation, charge sheet was filed against accused Nos.1 and 2 for the offence punishable under Section 302 read with 34 of IPC.
4. After committal of the case, accused appeared and charges were framed. The prosecution has examined 14 witnesses as P.Ws.1 to 14, the documents are marked as Exs.P-1 to P-21(a) and the material objects are marked as M.Os.1 to 12. After completion of trial, the statement under Section 313 was recorded and the accused has denied the incriminating circumstances.
5. On appreciating the oral and documentary evidence placed on record, the trial Court has held the appellant-accused guilty of the offence punishable under Section 302 read with 34 of IPC. The trial Court placing reliance on the evidence of eye-witnesses, recovery of the material objects and the medical evidence, has come to the conclusion that the appellant-accused No.2 has committed the alleged offence punishable under Section 302 read with 34 of IPC.
6. Learned counsel for the appellant-accused No.2 would strenuously contend that there is no cogent evidence by the eye-witnesses and the complainant to prove that accused No.2 has assaulted the deceased- Vengaiah with an intention to commit his murder. According to the evidence of eye-witnesses, there was a commotion at the work place on account of the directions given by the deceased-Vengaiah to the accused and other labourers. It is only the sudden agitation that led to the incident of assault. At that point of time either the accused or any other labourers at the spot had no intention whatsoever. In the instant case, the overt-act of the accused No.2 is only assault with the brick. Thus, no definite case is made out that accused No.2 had pre-meditation or intention to commit the murder. At the best, it is the case for conviction under Section 304 Part-II of IPC and not the case for conviction under Section 302 of IPC.
7. Per contra, learned Additional SPP for the respondent has submitted that there is ample evidence on record to show that prior to the date of incident, there were few instances of quarrel between the accused and the deceased in connection with the work to be carried out in the brick factory. Thus, accused Nos.1 and 2 had developed enmity against the deceased, as such, the accused Nos.1 and 2 had motive to kill Vengaiah. Accused Nos.1 and 2 have assaulted the deceased-Vengaiah with reaper and the brick on the vital parts of the body, which clearly indicates that they had intention to commit the murder. The medical evidence goes to show that the deceased had sustained fracture and grievous injury on the back side of the head, which has resulted in his death. The recovery of weapons viz., reaper, brick pieces, blood stained mud, T-shirt and other blood stained clothes through mahazar, goes to show that on the date of incident, both the accused have assaulted the deceased-Vengaiah and have committed his murder. When there is a clear evidence to show the hostility between the accused and the deceased-Vengaiah and there was pre-plan to commit the murder, this case do not fall under the category of Section 304 Part-II of IPC. There are no valid grounds to interfere with the judgment of conviction and sentence passed by the Sessions Court.
8. In view of the submissions of the learned counsel for the appellant-accused No.2 and the learned Additional SPP, the only point that arises for consideration is:
“Whether the trial Court was justified in convicting accused No.2 for the offence punishable under Section 302 read with 34 of IPC”?
9. Considering the contentions urged, this Court has to re-appreciate the evidence placed on record on the following circumstances:
1. Homicidal death;
2. Motive;
3. Reliability of the evidence of witnesses; and 4. Recovery of incriminating articles.
10. As far as homicidal death is concerned, the learned counsel for the appellant has not pointed out any doubtful circumstances so as to dispute the homicidal death. The inquest mahazar, post mortem report and the evidence of the eye-witnesses and medical officer, who has conducted PM examination confirm that the deceased had sustained severe injuries on account of the assault done with reaper and brick piece. The inquest report fully corroborates with the evidence of the witnesses. The injuries stated in the PM report and on inquest mahazar are the main cause for the death of the deceased-Vengaiah. Therefore, the prosecution has successfully established the homicidal death of the deceased.
11. Motive: During the course of arguments, learned counsel for the appellant strenuously contended that the accused persons had no motive or pre-meditation whatsoever to commit the murder of the deceased.
12. The averments made in the complaint and the evidence of eye-witnesses clearly goes to show that on the date of incident, there was a commotion, the accused persons and few others were agitating against the deceased-Vengaiah as he had issued some directions for extracting the work from them. The very circumstance of the accused persons agitating and assaulting the deceased-Vengaiah goes to show their intention.
13. We are conscious of the fact that the motive circumstance alone cannot be the basis so as to hold the accused guilty. The said circumstance can be used as a strong corroborative piece of evidence with other material available on record. It has to be borne in mind that if the prosecution proves the case beyond reasonable doubt and if the motive is not proved it is not fatal to the prosecution case. If the prosecution is able to prove the guilt of the accused otherwise than the motive and also prove the existence of certain motive, however remote it may be, it will strengthen the case of the prosecution in order to ascertain the gravity of the offence.
14. It is the duty of the Court to consider the trustworthiness of the evidence placed on record. In the case on hand, the eye-witnesses, who were present at the spot have clearly spoken about the acts of the accused. Thus, we feel it necessary to ascertain whether the evidence of eye-witnesses and other witnesses have got any contradictions, improbabilities and variations so as to come to the conclusion that these witnesses cannot be relied on to convict the accused. Thus, we have given a cursory glance to the evidence of these witnesses.
15. P.W.1 is the complainant, who was present at the spot at the time of commission of the offence. P.Ws.2, 11 and 13 are the eye-witnesses to the incident of assault. P.W.3 is the owner of the brick factory, where the alleged incident of assault has taken place. P.W.4 is the panch witness for Ex.P-2 spot mahazar. P.W.5 is the medical officer, who has examined the injured victim when he was brought to the hospital and has issued certificate as per Ex.P-3.
P.W.6 is the witness for Ex.P-4 inquest mahazar. P.W.7 is the panch witness for Ex.P-5 for recovery of clothes of the accused. P.W.8 is the medical officer, who has conducted Post Mortem examination and has issued PM report as per Ex.P-6, P.W.8 has also examined the blood stained clothes and material objects i.e., wooden reaper and a broken brick and has issued report as per Ex.P-7. P.W.9-C.S.Thimmegowda is the Police Constable, who handed over dead body to the relatives after PM examination and carried the articles to the FSL. P.W.10 is the PSI, who arrested accused Nos.1 and 2 during investigation on 18.02.2014. P.W.12 is the Investigating Officer, who has conducted entire investigation and submitted the charge sheet. P.W.14 is the relative of the deceased.
16. As could be seen from the evidence of witnesses viz., P.Ws.1, 2, 11 and 13, it is clear that on the date of alleged incident i.e., on 17.02.2014, they were present at the spot in the factory of P.W.3. P.Ws.1 and 2 being the friends of P.W.3, had gone to the brick factory with an intention to meet P.W.3, at that time P.Ws.1 and 2 heard commotion of some labourers, when they went near the spot, they saw the accused assaulting deceased-Vengaiah with reaper and brick, as a result of which Vengaiah sustained head injuries and collapsed on the spot. These two witnesses immediately shifted deceased-Vengaiah to Maruthi Eye Clinic situated at Bagalur. On examination, P.W.5-the Doctor who examined the injured declared as he was brought dead. Thereafter, P.W.1 has lodged the complaint as per Ex.P-1. P.Ws.1 and 2 have deposed as per the averments made in the complaint; they have been cross-examined at length, but nothing much has been elicited to disprove their presence.
17. P.Ws.11 and 13 are the workers in the said brick factory, they have stated that one year prior to the date of incident, there was a fight between deceased-Vengaiah and some labourers as Vengaiah has directed to complete their work and thereafter to go for lunch, but the labourers were not ready to obey his orders. Even on the date of incident, because of the directions issued by deceased-Vengaiah, both the accused got angry and started assaulting him with reaper and brick. P.Ws.11 and 13 have consistently stated about the assault done by the accused and injuries sustained by the deceased-Vengaiah.
In the cross-examination several suggestions have been made but nothing worthy is elicited to prove that no such incident has taken place and the accused have not assaulted deceased-Vengaiah with reaper and brick. Even if there are any minor discrepancies, they will not go to the root of the case to disprove the prosecution case.
18. The evidence of P.Ws.1 and 2 is corroborated by the evidence of P.Ws.11 and 13, who are also the eye-witnesses, and also the medical evidence. The material objects are identified by these witnesses. On re-appreciation of the evidence on record, we are of the considered view that evidence of P.Ws.1, 2, 11 and 13 is consistent and credit worthy and there are no doubtful circumstances to disbelieve their evidence.
19. As far as the recovery of the material objects is concerned, Ex.P-2 is the spot mahazar, M.Os.1 and 2 have been recovered from the spot. This aspect is confirmed by P.Ws.1 and 4. Thus, there is cogent evidence to prove the recovery of material objects produced by the accused which are used to assault the deceased-Vengaiah.
20. P.W.12 has conducted the entire investigation and submitted the charge sheet. He has stated about recording of statement of witnesses and seizure of material objects. This official has been cross- examined at length, but nothing much is elicited to show the doubtful circumstances so as to disbelieve the prosecution case.
21. The Court should always make an endeavour to find out the truth. The criminal case is not only against the individual but also against the Society. There would be failure of justice if an innocent man is punished. Thus, it is the bounden duty to perceive both sides viz., prosecution as well as the defence. Coming to the case on hand, there is convincing evidence to show that the accused have assaulted the deceased-Vengaiah with reaper and brick on vital parts of the body, but there is no evidence to show that these two accused had come to spot with the weapons.
22. According to the prosecution version the accused No.2 has assaulted the deceased with brick piece, which clearly goes to show that at that point of time there was no premeditation or preplan by the accused No.2. The circumstances at the time of incident indicate that there was a commotion and several other labourers had also gathered at the spot. The accused being enraged, had just lifted a brick piece available at the spot and has assaulted the deceased- Vengaiah. The accused No.2 alone had not gone to the spot with an intention to commit the murder of the deceased-Vengaiah.
23. The PM report at Ex.P-6 reveals that the deceased had sustained the following injuries:
“1. Laceration present over the back of the head measuring 8cms X 2cms X 0.5cm(bone depth) 2. Abraded contusion present over nape of the neck measuring 8 X 3cm.”
Further it is stated that the said injuries were caused by blunt weapons.
24. During the course of arguments the learned legal aid counsel representing accused No.2 strenuously contended that the evidence of prosecution do not make out a case that the accused has committed the murder with a deliberate intention. Therefore, the case falls under the exception under Section 304 Part-II of IPC. It is also submitted that accused No.2 do not have any criminal antecedents and he is not involved in any other criminal cases.
25. In view submission made by the learned counsel for appellant-accused No.2, it is necessary to ascertain whether the case would fall under Section 304 Part-II IPC.
26. When the evidence on record show the accused had the intention and knowledge, then the same would be the case of Section 304 Part-I of IPC and if it is only a case of knowledge and no intention to commit murder or bodily injury then the same would fall under Section 304 Part-II of IPC.
27. The circumstances in which the injury was inflicted with the brick piece, do not suggest that appellant-accused No.2 had intention to kill the deceased. All that can be said is that the appellant had the knowledge that the injury inflicted by him is likely to cause the death of the deceased. The case would, therefore, more appropriately fall under Section 304 Part-II of IPC.
28. On re-appreciation of entire evidence placed on record, we are of the view that even though the accused No.2 had assaulted the deceased with brick, he did not have intention to commit the murder, but he had definite knowledge that the assault done by him with brick piece would lead to the death of the deceased. Hence, we are of the opinion that the evidence placed on record by the prosecution falls under Part-II of Section 304 of IPC.
29. In the result, the appeal is allowed-in-part.
The judgment of conviction and sentence passed in S.C.No.15023/2014 by the V Addl. District and Sessions Judge, Devanahalli, is hereby set-aside and the same is modified only to the extent that instead of Section 302 of IPC the appellant shall stand convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 Part-II IPC and sentenced to undergo the rigorous imprisonment for a period of 10 years and to pay a fine Rs.1,00,000/- (Rupees One Lakh only) and in default of payment of fine, he shall undergo imprisonment for a period of one year.
The entire fine amount to be collected from the appellant-accused No.2, shall be paid to the legal representatives of the deceased-Vengaiah as compensation.
Sd/- JUDGE BSR Sd/- JUDGE