Karnataka High Court
Sreeramappa S/O Muniswamy Bhovi vs State Of Karnataka on 20 March, 2013
Bench: Mohan.M.Shantanagoudar, B.S.Indrakala
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20th DAY OF MARCH 2013
PRESENT
THE HON'BLE MR JUSTICE MOHAN.M.SHANTANAGOUDAR
AND
THE HON'BLE MRS JUSTICE B S INDRAKALA
CRIMINAL APPEAL No.52/2009
BETWEEN:
SREERAMAPPA,
S/O MUNISWAMY BHOVI,
NOW AGED ABOUT 45 YEARS,
R/O KURUBARAHALLI VILLAGE,
BYRKUR HOBLI,
MULBAGAL TALUK,
KOLAR DISTRICT.
(NOW SERVING SENTENCE AT
CENTRAL PRISON, BANGALORE) .. APPELLANT
(BY SRI M B RAMACHANDRA, ADVOCATE)
AND:
STATE OF KARNATAKA BY,
MASTI POLICE (MALUR CIRCLE)
(REP. BY LEARNED STATE
PUBLIC PROSECUTOR) .. RESPONDENT
(BY SRI P M NAZAR, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. PRAYING TO SET-ASIDE THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE DATED
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27.2.2006 PASSED BY THE ADDL. S.J., P.O., FTC-III,
KOLAR IN S.C.NO.172/2005 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC, AND THE
APPELLANT/ACCUSED SENTENCE TO UNDERGO
IMPRISONMENT FOR LIFE FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
MOHAN.M.SHANTANAGOUDAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
The judgment and order of conviction passed by the Fast Track Court III, Kolar in S.C.No.172/2005 is called in question in this appeal.
2. The case of the prosecution in brief is that Eramma @ Neelamma is the deceased; she is the wife of the accused; the marriage took place between the two, about 15 years prior to the incident in question; out of the wedlock two children are born; the accused suspected that his wife Eramma developed intimacy with his brother Munirathnappa; in that context, the accused used to assault and ill-treat Eramma; on 8.5.2005, the accused had brought his wife Eramma to the house of the father of the deceased 3 viz., Ramappa situated at Turuvalahatti Village; when all other inmates of the house had been to agricultural land for agricultural operations, the accused at 3.00 PM picked up quarrel with deceased Eramma and hit on her head with club and other parts of the body as a result of which, Eramma died on the spot. A complaint came to be lodged by Munichowdappa - brother of the deceased as per Ex.P.8 on the very day i.e., 8.5.2005 before Masti Police Station, Kolar District which came to be registered by the Sub-Inspector of Police Venkatanarasappa (PW23) in Crime No.41/05 for the offence under Section 302 of IPC. The police after investigation have filed the charge sheet. The accused was charged, tried and convicted for the offence under Section 302 of IPC.
The case rests mainly on the evidence of PW3 and PW16 who are stated to be the eye-witness to the incident.
PWs 1 and 2 are the eyewitnesses but have turned hostile.
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PW4 is the sister of the deceased who came to the house after hearing the news.
PW5 is the mahazar witness for inquest pancha - Ex.P.4.
PWs 6 and 7 are also the inquest panchas who have turned hostile.
PWs 8 and 9 are the parents of the deceased. They come to the spot on hearing the news. They are hear say witnesses.
PW 10 is also the hear say witness.
PW 11 is the witness for scene of offence Ex.P.6 under which the club (MO 1) said to have been used by the accused for commission of murder is seized from the spot.
The evidence of PW 12 is also on par with the evidence of PW 11.
PW 13 is the village accountant who has issued the house extracts as per Ex.P.7. The said house extract reveals that the house in which the incident has taken place belongs to Ramappa (PW 8 ).
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PW 14 is the complainant. He is the brother of the deceased. The complaint is marked at Ex.P.8.
PW 15 is the wife of PW 14. Though she is the eye witness, she has supported the case of the prosecution in respect of the incident in question partly.
PW 16 is the eye witness to the incident. He is the son of the complainant.
PW 17 is one of the inquest pancha PW 18 is the Junior Engineer who drew the sketch of the scene of offence as per Ex.P.10.
PW 19 is the doctor who conducted the post mortem examination and issued the report as per Ex.P.11. He has also issued the opinion as per Ex.P. 12 (MO1 - club) PWs 20, 21 and 22 are the police constables who participated in the investigation at different stages.
PW 23 is the PSI who registered the complaint lodged by PW14. He has investigated the crime in part.
PW 24 is the investigation officer who completed the investigation and laid the charge sheet. 6
3. At the outset, it is brought to the notice of the Court by the learned counsel appearing for the appellant that the accused was and is suffering from Bipolar Mental Disorder since 2002 and that he has not understood the trial proceedings at all. The accused was not produced before the trial Court during the examination of 18 witnesses; since the accused was not in a position to understand the trial procedure, according to him, serious injustice is caused to the accused. It is further submitted that on the date of the incident itself, the accused was arrested and he was taken into custody. Since then, none of his relatives have come forward to help him. However, he has been taking treatment in NIMHANS, Bangalore since 2002 onwards. He relies upon two medical records issued by NIMHANS dated 16.6.2005 and 25.6.2009. Unfortunately, the prison authorities also did not bring to the notice of the Court as well as the advocate appearing on behalf of the accused about the bipolar disorder being suffered by the accused. Thus, on that ground learned advocate appearing for the appellant argues that the matter needs to be remitted with a direction 7 to the trial Court to consider the matter afresh. He has also taken us through the medical records and argued for acquittal of the accused. In the alternative, he submitted that the incident has occurred on the spur moment inasmuch as, the accused has taken the club which was lying in the house and assaulted the wife as he was enraged by the act of his wife having illicit intimacy with another person.
4. The said submission is opposed by Sri Nawaz. Learned SPP. He submits there is nothing on record to show that the accused was suffering from bipolar mental disorder, not only at the time of incident but also at the time of trial. At the time of framing charges, the accused was very much present and he has answered the charges also and thereafter, signed the plea form; so also the accused has answered all the queries put to him while being examined under Section 313 Cr.P.C; no defence is taken by the accused during the course of trial that he was suffering from bipolar mental disorder and that therefore, he has 8 understood the procedure of trial and therefore, the matter need not be sent back to the trial Court for fresh adjudication.
5. Looking to the totaling of the facts and circumstances of the case, we deem it proper to remit the matter to the trial Court for fresh adjudication in view of the fact that accused was suffering from bipolar mental disorder since 22.3.2002 and he has been taking treatment in NIMHANS. NIMHANS hospital authorities have written letter on 16.6.2005 i.e., during the pendency of the trial to the jail authorities that the accused has been taking treatment since 22.3.2002 and that he may be sent on Saturdays for follow- up treatment. Unfortunately, the said fact was not brought to the notice of the trial Court by the jail authorities. In the matter on hand, the advocate who was appearing on behalf of the accused was not the advocate appointed by the accused. Since the accused was unable to appoint an advocate, the standing counsel of Legal Services Authority was appointed to defend the accused. It seems, the said 9 standing counsel also did not have the knowledge about the bipolar mental disorder of the accused. Since, the jail authorities did not bring to the notice of the Court about the disorder, the trial went on.
6. The accused has answered the charges. He has also signed the plea form in regular manner; however, while signing his statement recorded under Section 313 Cr.P.C., his signature is totally different. The accused was not produced before the Court during the process of trial while 18 witnesses were examined. Therefore, it seems the trial Court also did not have the chance to verify as to whether the accused was mentally sound or not. In the statement recorded under Section 313 by the trial Court, the trial Court has erroneously not mentioned therein that the questions under Section 313 statement were read over to the accused in the language known to the accused. The questions were framed in English language. It is mentioned therein that such questions were read over, but it is not mentioned that they were read over in the language known 10 to the accused. Be that as it may. Since, we find that the accused needs to be retried for the aforementioned reasons, we do not deem it proper to enter into merits at this stage. Accordingly, the following order is made:
ORDER "The impugned judgment and order of conviction passed by the trial Court in S.C.No.172/2005 dated 27.2.2006 is set-aside. The trial Court is directed to adjudicate upon the procedure contemplated under Section 329 of the Code of Criminal Procedure and such other relevant provisions found in Chapter 25 of Code of Criminal Procedure before proceeding further".
Sd/-
JUDGE Sd/-
JUDGE brn