IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.157 OF 2016 BETWEEN:-
SRI. RAMESH RAM BHAV KARMOTI S/O. RAM BHAV, AGED ABOUT 46 YEARS, CHINNAD VILLAGE, PANVEL TALUK, RAIGHAD DISTRICT, MAHARASHTRA, WAS RESIDING AT CHENNARAYAPATANA TOWN, PRESENTLY, CONVICT NO. 16848, CENTRAL PRISON, MYSORE, KARNATAKA-570 010. ... APPELLANT (By Sri: VIVEK S, ADVOCATE) AND:
THE STATE OF KARNATAKA BY CHENNARAYAPATNA, TOWN POLICE STATION, HASSAN DISTRICT, HASSAN-573 116.
REPRESENTED BY STATE PUBLIC PROSECUTOR BENGALURU ... RESPONDENT (By SRI: K.NAGESHWARAPPA, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 28.01.2011 AND ORDER ON SENTENCE DATED 15.02.2011 PASSED BY P.O., F.T.C., CHANNARAYAPATNA IN S.C.NO.21 OF 2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 304 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 10 YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 304 OF IPC. THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
***** THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal is preferred against the judgment dated 28.01.2011 passed by the Fast Track Court, Channarayapatna in S.C.No.21 of 2010 whereunder the appellant (hereinafter referred to as the ‘accused’) is convicted under Section 304 of Indian Penal Code and is sentenced to rigorous imprisonment for 10 years.
2. The case of the prosecution is that the accused was a rag picker. There was past enmity between the accused and the deceased and in this connection, on 19.06.2009, at about 6.00 p.m., the accused picked up a quarrel with the deceased Shankara near K.R. Circle, Channarayapatna and assaulted him with a sharp broken glass piece on his abdomen, as a result, the deceased succumbed to the injuries on the same day.
3. Initially, charge sheet was laid against the accused under Section 302 Indian Penal Code. However, the trial court convicted him for the lesser offence under section 304 Indian Penal Code and imposed the sentenced as above.
4. I have heard the learned counsel for the appellant Sri. Vivek. S and the learned HCGP Sri.K. Nageshwarappa on behalf of the respondent-State and have examined the records.
5. The prosecution has rested its case on the direct testimony of the four witnesses, who are examined as PWs.1 to 4. PW-1 is the complainant and an eye witness to the incident.
According to him, on 19.06.2009, he was selling ‘vada’ and ‘bajji’ in a push cart near K.R. Circle, Channarayapatna, at about 6.30 p.m., he saw the accused coming from the bus stand and he picked up quarrel with the deceased. There was a scuffle and both of them were holding shirt collars of each other. At that time, the accused removed a sharp glass piece from his bag and stabbed on the abdomen of the deceased. He was immediately shifted in an ambulance to the hospital and on the same day, he succumbed to the injuries. He further deposed that regarding this incident, he lodged a complaint before Channarayapatna police as per Ex-P1.
6. The evidence of PW-1 is suitably corroborated by PW-3 Smt. Sarojamma, who was vending flowers near the spot of occurrence. This witness has also narrated the incident in line with the testimony of PW-1. Nothing has been elicited in the cross-examination of PWs-1 and 3 to doubt or disbelieve their evidence either with regard to their presence at the spot or with regard to the overt-acts committed by the accused as deposed by them. These witnesses have explained their presence at the spot. Therefore, the evidences of these witnesses have to be treated as that of the natural witnesses. The testimony of PWs-1 & 3 is further corroborated by PW-2-a tailor who was involved in his regular duties near the spot of occurrence. He has deposed that while he was returning from the tea shop, he noticed the incident. Likewise, PW-4 a cashier in the Bengaluru Cloth Centre, Channarayapatna situate near the spot of occurrence, has deposed in line with the above witnesses. There is absolutely no reason to doubt or disbelieve the testimony of these witnesses.
7. The learned counsel for the appellant/accused however submits that the complaint having been scribed by one Lokesh, he has not been examined and therefore, the lodging of the complaint is rendered doubtful.
8. Having regard to the direct testimony of PWs-1 to 4, I do not find that the non-examination of the scribe of the complaint would in any way render their testimony vulnerable. The contents of the complaint is in conformity with the testimony of PW-4. Therefore, I do not find any merit in the objection raised by the learned counsel for the appellant/accused in this regard.
9. Further, the learned counsel has pointed out that PW-2 has admitted in the cross-examination that he has not witnessed the actual incident and he reached to the spot only after the incident. I have considered his evidence. PW-2 has clearly stated in his evidence that appellant/accused was holding the blood stained glass piece in his hand, when he reached the spot. In my view, even this testimony lends corroboration to the testimony of the other witnesses, thereby establishing the guilt of the appellant/accused for the offence charged against him. I do not find any error or infirmity in the impugned judgment warranting interference by this Court. There is no perversity in the findings recorded by the trial Court. On the other hand, the impugned judgment reveals that the trial court has considered all the aspects of the evidence in proper perspective and has arrived at the right conclusion which do not suffer from any error or perversity.
10. It is seen from the impugned judgment that the trial court has convicted the accused for the lesser offence under section 304 Indian Penal Code solely on the ground that the prosecution has failed to prove the motive. In my view, the approach of the Lower Court in this regard is not proper. When the prosecution has proved its case with the direct evidence, the proof of motive is immaterial. Nonetheless, the State having not challenged the conviction of the appellant/accused for the lesser offence, I do not find any reason to interfere with the impugned judgment. Hence, the appeal being devoid of merits, the same is dismissed. The impugned judgment dated 28.01.2011 and the order of sentence dated 15.02.2011 passed by the Presiding Officer, Fast Track Court, Channarayapatna in S.C.No.21 of 2010 is confirmed.
Sd/- JUDGE *mn/-