Karnataka High Court
Prakash Valyapura vs State Of Karnataka on 14 January, 2022
Crl.A.No.1025/2019
1
M
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.1025/2019
BETWEEN:
PRAKASH VALYAPURA
S/O MOHAN VALYAPURA
AGED ABOUT 36 YEARS
R/AT BEHIND R.T.O.
RAMANAGARA
BIJAPUR DISTRICT - 592 821 ...APPELLANT
(BY SMT.GEETA.R.SHINDHE, ADVOCATE FOR
SRI RAJENDRA DESAI, ADVOCATE)
AND:
STATE OF KARNATAKA
REP BY P.S.I.
SUBRAHMANYA POLICE STATION
SUBRAMANYA
DHAKSHINA KANNADA - 57 ...RESPONDENT
(BY SRI SHANKAR H.S., HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 21.03.2019 PASSED BY V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU, SITTING AT PUTTUR, D.K. IN S.C.NO.5002/2014
CONVICTING THE ACCUSED/APPELLANT FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 498A,307 & 333 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE DELIVERED THE FOLLOWING:
Crl.A.No.1025/2019
2
M
JUDGMENT
Heard.
2. Aggrieved by the order of conviction and sentence passed against him for the offences punishable under Sections 498A, 307 and 333 of IPC, the accused in S.C.No.5002/2014 on the file of V Additional District & Sessions Judge, Dakshina Kannada, Mangaluru Sitting at Puttur has preferred the above appeal.
3. The appellant was prosecuted in the said case for the charges for the offences punishable under Sections 498A, 307, 333, 504 and 506 of IPC on the basis of the charge sheet filed by Subramanya Police in Crime No.49/2014 of their Police Station.
4. Crime No.49/2014 was registered against the appellant on the basis of the complaint filed by PW.5 Sri K.S.Subramanya Bhat. PW.1 was working as Driver cum Conductor in KSRTC, Puttur Division since 17.08.2011. PWs.3 and 4 are brother and sister of PW.1. The appellant married PW.1 Indira Ryagi on 13.05.2013 at Muddebihal representing that he was employed in KEB Crl.A.No.1025/2019 3 M as meter reader on contract basis. At the relevant time, PW.5 was working as Traffic Controller in KSRTC bus stand Subramanya. On 19.03.2014, PW.6 was working as luggage worker in Subramanya Bus stand and PW.2 was working as Driver with PW.1 on Dharmasthala route in KSRTC.
5. The case of the prosecution is as follows:
(i) Since 17.08.2011, PW.1 was living in the house of PW.7 in Ujire as tenant. After two months of the marriage, the appellant left the job and used to stay with PW.1 at Ujire.
(ii) Intermittently, the appellant started demanding PW.1 to pay salary to him. He used to come home drunk, suspect her fidelity and abuse her and her family members in foul language.
(iii) During the night of 18.03.2014, the appellant quarrelled with PW.1 regarding giving of her salary to him and threatened her that if she denies to give the salary he would commit her murder and take her job.
(iv) On 19.03.2014, PWs.1 and 2 were deployed in Bus bearing No.KA-19-F-3218 as Conductor and Driver Crl.A.No.1025/2019 4 M on Dharmasthala-Subramanya-Sullia-Kasargod route. The appellant boarded the bus at Sullia and traveled upto Subramanya. During that time, he abused PW.1 in foul language.
(v) After the passengers and PW.2 alighting from the bus in Subramanya bus Stand, with an intention to commit murder of PW.1, the appellant stabbed her on her chest, right thigh, neck, cheek and left arm and caused her grievous injuries. He attempted to commit her murder. For that purpose, he had purchased knife MO.3 from the shop of PW.9.
(vi) When the appellant was assaulting, PW.1 raised alarm. Listening to that PWs.2, 5 and 6 rushed to the scene of offence, found the appellant with knife in his hand. They found injuries on PW.1 and even on the hands of the appellant. They shifted PW.1 to the hospital at Subramanya. Then they shifted her to the major hospital at Puttur for further treatment.
(vii) PW.5 filed complaint as per Ex.P4. On that basis, PW.10 registered the first information report.
PW.13 conducted further investigation and seized the Crl.A.No.1025/2019 5 M incriminating materials under the mahazars Exs.P1, P5, P7 & P11, collected the wound certificate of the victim and the appellant and filed the charge sheet.
(viii) PW.1 was revealing harassment of the appellant to her brother and sister PWs.3 and 4 and the landlord PW.7.
6. The trial Court on hearing the parties, framed the charges against the appellant for the offences punishable under Sections 498A, 333, 307, 504 and 506 of IPC. On conducting the trial, the trial Court by the impugned judgment convicted the appellant for the offences punishable under Sections 498A, 307 and 333 of IPC and acquitted him of the charges for the offences punishable under Sections 504 and 506 of IPC. Further the trial Court sentenced the appellant as follows:
Sl. Offences Sentence Fine Default
No. Punishable amount sentence
under Section in Rs.
1 498A of IPC Simple 3,000/- Simple
Imprisonment of imprisonment
one year of three
months
2 307 of IPC Rigorous 10,000/- Simple
imprisonment of imprisonment
seven years of 1½ years
3 333 of IPC Rigorous 5,000/- Simple
imprisonment of imprisonment
five years of one year
Crl.A.No.1025/2019
6
M
7. Against acquittal of the appellant for the offences punishable under Sections 504 and 506 of IPC, the State has not preferred any appeal. Therefore that order has attained finality. The appellant has challenged order of his conviction and sentence for the offences punishable under Sections 498A, 307 and 333 of IPC.
8. Submissions of Smt.Geeta.R.Shindhe, learned Counsel for the appellant to assail the impugned order of conviction and sentence are as follows:
All the witnesses in the case are relatives and colleagues of the victim. There are no independent witnesses to the incident. PWs.2 and 5 are not eyewitnesses to the assault. PW.9 the vendor of the knife has turned hostile to the proceedings under the mahazar Ex.P11 regarding seizure of Ex.P9 the receipt for sale of knife. The evidence of PW.1 regarding harassment in connection with dowry is not corroborated by the evidence of PWs.3 and 4. To attract the offence under Section 498A of IPC, there should be harassment which is likely to drive the married women to commit suicide, but Crl.A.No.1025/2019 7 M that is not the case here. There are contradictions in the evidence of PWs.1, 2 and 5 regarding the scene of offence. The complaint says that PW.5 sighted the victim in the bus. But in his deposition, he says that he sighted her when she had fallen on the platform of the bus stand. The evidence of PWs.5 and 10 regarding place of filing and registering the complaint is inconsistent. The evidence with regard to recovery of MO.3 is not credible. There is inconsistency in the depositions of PWs.8 and 12 and the RFSL Report and Serology report as per Exs.P14 and P16. If at all the appellant intended to commit murder of PW.1 he could have stabbed her in the house only instead of public place. Therefore the said prosecution theory is doubtful. There is inconsistency in the evidence of PWs.2, 5 and PW.1 with regard to her attendance soon after the incident. Narration of the incident by PW.1 before the Sessions Court and her affidavit Ex.D1 filed before the Family Court in matrimonial proceedings was not consistent. PW.1 has suffered accidental injuries. Since she wanted to divorce, taking advantage of accidental injuries she has falsely Crl.A.No.1025/2019 8 M implicated the appellant in the case. Even assuming that the appellant has inflicted the injury, at the most that constitutes the offence under Section 326 of IPC and not Section 307 of IPC.
In support of her contentions, she relies upon the judgment of the Hon'ble Supreme Court in Takhaji Hiraji v. Thakore Kubersing Chamansing1.
9. Submissions of learned HCGP seeks to justify the impugned judgment.
PW.1 is the injured eyewitness. Her evidence carries more weight. The presence of PWs.2, 5 and 6 at the scene of offence is probable and natural. Therefore there is no reason to disbelieve their evidence. The family matters can be discussed before the close relatives, therefore there is no reason to suspect the evidence of PWs.3 and 4. The evidence of PW.1 is corroborated by the evidence of PWs.2 to 6 and the landlord PW.7. Her evidence is further corroborated by the medical evidence. The victim's blood samples were 1 (2001) 6 SCC 145 Crl.A.No.1025/2019 9 M not taken. Therefore inconsistency in evidence PWs.8, 12 and 13, about blood group and Exs.P14 and P15 about the same is not material. There is sufficient evidence to show that the appellant assaulted the victim. The evidence of the injured eyewitness prevails over opinion evidence. The appellant did not explain the injuries found on him. The appellant was arrested on the same day. Suggestions to PW.1 themselves prove the motive circumstance. Minor inconsistency and embellishment is bound to happen and they are natural. The versions of the police officers, PWs.6 and 4 could not render the testimony of the witnesses unreliable. Such embellishment, omissions and contradictions did not destroy the core of the prosecution story.
In support of his contentions, he relies upon the judgment of the Hon'ble Supreme Court in Bakhshish Singh v. State Of Punjab2
10. Having regard to the rival contentions, the point that arises for consideration is 'whether the 2 (2013) 12 SCC 187 Crl.A.No.1025/2019 10 M impugned order of conviction and sentence is sustainable in law'?
11. The relationship between the parties is not disputed. The appellant also did not dispute that soon after the marriage, he left his job. It is also not disputed that even before marriage of the appellant and PW.1, she was employed in KSRTC Dharmasthala depot as Driver cum Conductor and she was working as such since 17.08.2011.
12. It is also not disputed that PW.1 was residing in the house of PW.7 in Ujire as tenant. The appellant does not even dispute that the injuries suffered by PW.1 as shown in the wound certificate Ex.P10. He did not even dispute that he had suffered injuries on his hand as per the wound certificate Ex.P20 which was marked during the cross-examination of the Investigating Officer PW.13 with no objections. Therefore the trial Court has rightly accepted that. The appellant did not explain his injuries. Crl.A.No.1025/2019 11
M
13. The defence of the appellant was that PW.1 suffered those injuries due to fall in the bus and he is falsely implicated in the case.
14. The cruelty under Section 498A of IPC alleged against PW.1 was:
(i) Pestering PW.1 for her salary and money;
(ii) Suspecting her fidelity; and
(iii) wasting her money for his alcoholism;
15. To prove the charge under Section 498A of IPC, the prosecution relied on the evidence of PW.1 victim, PWs.3 and 4 the brother and the sister of PW.1, PW.7 the landlord. So far as the charges for the offences under Sections 333 and 307 of IPC, the prosecution relied on the evidence of PW.1 injured, PW.2 driver of the bus and PW.5 the complainant who is the Traffic Controller and PW.6 luggage worker.
16. The prove the circumstance of purchasing knife, the prosecution relied on the evidence of PW.9. To prove the injuries, the prosecution relied on the medical evidence of PW.8 and the Scientific Expert PW.12. Further Crl.A.No.1025/2019 12 M the prosecution relied on the evidence of PWs.10 and 13 the police witnesses.
17. The case of the prosecution was based on:
(i) The circumstance of motive;
(ii) The evidence of injured eyewitness;
(iii) The evidence of res gestae witnesses PWs.2, 5 and 6;
(iv) The medical evidence;
(v) The circumstance of recovery and purchase
receipt Exs.P9 and P11;
(vi) The scientific evidence of PW.12;
(vii) The evidence of the police witnesses.
18. The motive alleged in the case is harassment of the appellant to PW.1 for salary and suspecting her fidelity. To prove that aspect, the prosecution relied on the evidence of PWs.1, 3, 4 and 7. PW.1 in her deposition consistently stated that after two months of the marriage, the appellant started harassing her demanding her hard earned money and suspecting her fidelity. Ex.D1 is the appellant's own document i.e. the affidavit filed by PW.1 Crl.A.No.1025/2019 13 M in M.C.No.303/2014. In that evidence, she has consistently stated about the harassment of the appellant in demanding money and about his alcoholism. The appellant himself suggested in the cross-examination of PWs.1, 3 and 4 that the marital relationship was not cordial. Therefore panchayats were summoned.
19. PWs.3 and 4 the brother and the sister deposed that PW.1 was revealing to them about harassment of the appellant. The issue being family matter, it is quite natural that it would be revealed to the family members. Since the incident has taken place within four walls of the house, the family members are natural witnesses to speak to that. In such case, generally nobody will rush to public to reveal all those incidents. Therefore, there is no merit in the contention that PW.3 and PW.4 are interested witnesses and independent witnesses were not examined. Evidence of PW.1 was corroborated by evidence of PWs 3 and 4.
20. As already pointed out the appellant did not explain his injury. He did not impeach the evidence of Crl.A.No.1025/2019 14 M PWs.1, 2 and 5 in the cross-examination about his presence at the scene of offence. He also did not dispute the injuries found on the victim. If injuries were accidental, then he should have first taken care of the victim and taken her to the hospital. But somebody else took her to the hospital. That circumstance also initiates against the appellant. Therefore the trial Court was justified in holding that the motive circumstance is proved.
21. Then the question is whether the incident dated 19.03.2014 was proved. As already pointed out in the cross-examination of PW.1, she suffering injuries on that day in Subramanya bus stand during the course of her duty is not disputed. The only suggestion is that she suffered a fall and the injuries were accidental one.
22. It is settled proposition of law that in such cases, the injured eyewitness stands on higher pedestal and her evidence plays a vital role. PW.1 clearly and consistently deposed that on previous day, the appellant quarrelled with her, when she was on duty, he boarded Crl.A.No.1025/2019 15 M the bus from Sullia, after PW.2 alighting from the bus, the appellant abused her and assaulted her with knife. She has also deposed that PW.5 and others came to her rescue, shifted her to Subramanya Hospital and from there to Puttur Hospital for further treatment. She has denied the suggestion that the injuries were accidental one.
23. PW.2 deposed that after parking the bus in Subramanya bus stand, all the passengers alighted from the bus, he went for tea and on hearing the commotion, he rushed to the spot. It is not disputed that PW.5 was Traffic Controller at the relevant time. PW.6 was luggage worker in the said bus stand. Therefore the presence of PWs.2, 5 and 6 at the scene of offence is probable and natural. If at all PWs.2, 5 and 6 wanted to falsely implicate the appellant, they would have said that they witnessed the appellant stabbing PW.1. They say that on hearing commotion, they rushed to the spot and found the injured PW.1 and the appellant standing near her with knife in his hand and he also suffering injury on his hand. Crl.A.No.1025/2019 16
M Therefore, PWs.2, 5 and 6 are res gestae witnesses. They corroborated the evidence of PW.1.
24. The evidence of PWs.1, 2, 5, and 6 was further corroborated by the medical evidence of PW.8. PW.8 is the doctor who treated PW.1 in Puttur hospital and issued wound certificate as per Ex.P10. Ex.P10 shows that soon after the incident, PW.1 was taken to the hospital with history of assault by the appellant with knife. Similarly, soon after the incident, Ex.P4 was filed where the name of the appellant was shown as assailant. Within such short span of time, there was no scope for manipulation or false implication of the appellant. In the evidence of PWs.2 to 6, nothing was elicited to show that they have any reasons or ill will to falsely implicate the appellant.
25. As already pointed out, PWs.2, 5 and 6 have consistently deposed that PW.5 pulled the knife from the hand of the appellant and kept it in his office and made the appellant to sit there. PW.5 further stated that when the Investigating Officer came, he handed over the knife Crl.A.No.1025/2019 17 M to him during mahazar. PW.13 deposed that the appellant was produced before him for medical examination and on examination of the accused, he issued Ex.P20 the wound certificate of the appellant. As already observed, Ex.P20 was marked without objections. By such evidence the injuries on the appellant stood proved. He did not explain those injuries. Therefore the evidence of PW.1 is sound and corroborated by the evidence of PWs.2, 5 and 6 about assault. Their evidence was further corroborated by the medical evidence of PWs.8 and 12.
26. When there is direct evidence of the injured eyewitness which is well corroborated by the evidence of other witnesses, the other circumstances lose their significance. Under the circumstance, PW.9 not supporting the proceedings under Ex.P11 does not demolish the prosecution case. PW.7 the landlord though states that there used to be loud talks in the house of PW.1, he later states that he does not know whether that was common conversation or any galata. But he states that PW.1 was revealing to him about the appellant Crl.A.No.1025/2019 18 M demanding money. In the cross-examination, he states that once PW.1 came to his house and told him that the appellant is insisting to pay salary to him and not to pay that to her family members.
27. Since the presence of PWs.1, 2 and 6 at the scene of offence was probable and natural and the evidence of PWs.3 and 4 about PW.1 revealing them about harassment of the appellant is probable and natural. The judgment in Takhaji Hiraji's case referred to supra relied on by learned Counsel for the appellant is not applicable.
28. It was contended that according to the witnesses there were thirty passengers in the bus and none of them were examined. The evidence on record sufficiently unfolds that the incident took place after all the passengers alighting from the bus. There is nothing to show that any of them had stayed back in the bus stand. Moreover, PWs.2, 5 and 6 are more probable witnesses. On that count also the judgment in Takhaji Hiraji's case is not applicable.
Crl.A.No.1025/201919
M
29. So far as the alleged contradictions in the evidence of the witnesses regarding the place they found the victim and Ex.P4 the complaint, the evidence of the witnesses more particularly the injured witness shows that the incident started in the bus and after the appellant stabbing her, she tried to escape. Ultimately, PWs.2, 5 and 6 say that they found wailing injured rushing to the platform and sighting appellant with knife in his hand and blood had spilled in the bus. Therefore even assuming that there is some inconsistency that does not destroy the core of the prosecution case that she has suffered stab injures and the appellant was found there with knife.
30. In paras 27 to 29 of the judgment in Bakhshish Singh's case referred to supra the Hon'ble Supreme Court held as follows:
"27. It was next urged that the said witness stated several things before the court which were not stated under Section 161 of the Code such as (i) "Kanda Kad Ditta Hai of Chairman and Chacha is not present in India and they should go to Chachi to take the money"; (ii) The Chairman of the Institute was Gurcharan Singh; (iii) Bakhshish Singh disclosed that they had political rivalry with the Chairman, namely, Crl.A.No.1025/2019 20 M Gurcharan Singh and it was disclosed by Bakhshish Singh that Rs.20,000/- each was paid to Satbir Singh and Rachhpal Singh for the murder of Chairman, Gurcharan Singh; (iv) Persons who were seen running away by Narinder Banwait (PW 19) were running away in suspicious circumstances; 'suspicious circumstances' was not mentioned under 161 statement (v) the said two persons had passed - and he was just ¾ feet away from them; 'distance' was not mentioned under 161 statement; (vi) on seeing the same I got scared; 'factum of getting scared' was not mentioned under 161 statement;
(vii) Bakhshish Singh disclosed that murder was to be executed only when Bakhshish Singh would be abroad. These undoubtedly seem to be embellishments by this witness. The question is whether these embellishments are such as to destroy core of the prosecution story, which is otherwise found to have been established. This Court in several cases observed that minor inconsistent versions/discrepancies do not necessarily demolish the entire prosecution story, if it is otherwise found to be creditworthy. In Sampath Kumar v. Inspector of Police : (2012) 4 SCC 124, this Court after scrutinizing several earlier judgments relied upon the observations in Narayan Chetanram Chaudhary v.
State of Maharashtra : (2000) 8 SCC 457 to the following effect:
"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person."Crl.A.No.1025/2019
21
M
28. In Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra : (2010) 13 SCC 657, this Court observed as follows:
"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan) (2008)17 SCC 587"
29. The embellishments in the statements of Narinder Banwait (PW 19) referred to above, in our view do not constitute such contradictions which destroy the core of the prosecution case as this Court in the case of Raj Kumar Singh alias Raju Alias Batya Vs. State Of Rajasthan : (2013) 5 SCC 722 at page 740 has observed as under:
" It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labeled as omissions or contradictions. Therefore, the courts must be cautious and very particular, in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinize the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are Crl.A.No.1025/2019 22 M completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief."
(Emphasis supplied)
31. The above judgment clearly shows that minor inconsistencies/discrepancies do not necessarily demolish the entire prosecution story, if it is otherwise found to be creditworthy. Similarly in this case also, the alleged contradictions and omission do not destroy the core of the prosecution case i.e. PW.1 suffered the injuries in the hands of the appellant. In the light of the judgment in Bakhshish Singh's case referred to supra the arguments with regard to the alleged discrepancies, omission and contradictions cannot be countenanced.
32. The other contention was that to convict under Section 498A of IPC, there should be harassment or cruelty to the magnitude of driving the married women to commit suicide and there is no such attempt of suicide, therefore the conviction under Section 498A of IPC does not sustain.
Crl.A.No.1025/201923
M
33. Section 498A of IPC consists of two parts. One part is cruelty in connection with demand for dowry and other part is infliction of cruelty of such a nature as is likely to cause grave injuries or danger to life, limb or health of the woman.
34. The medical evidence shows that PW.1 suffered seven injuries on her neck, chest, thigh, finger, face and arm. The evidence of PW.8 that injury No.5 was grievous in nature was not controverted. PW.9 though did not support the proceedings regarding recovery of receipt under Ex.P11 deposed about purchase of the knife by the appellant. The ocular evidence of PWs.1, 2, 5 and 6 sufficiently shows that the appellant used knife in assaulting PW.1. Therefore the act of the appellant is clearly covered under Section 498A Explanation (b) of IPC.
35. The other contention is that the offence at the most attracts the offence under Section 326 of IPC. The wound certificate and the evidence of PWs.1 and 8 clearly show that the injuries were inflicted on the vital parts of Crl.A.No.1025/2019 24 M the body. PW.1 says that he assaulted her saying that he would kill her. Even when PWs.2, 5 and 6 came to the scene of offence, they found the appellant with knife in his hand. He had travelled from Sullia to Subramanya in the bus holding knife and then assaulted her. That shows pre-mediation on his part. If timely PW.1 was not rescued by PWs.2, 5 and 6, the result would have been devastating.
36. Having regard to the nature of the injuries and the aforesaid circumstances, this Court does not find any merit in the contention that the act constitutes only an offence under Section 326 of IPC. Considering all the aforesaid aspects and on sound appreciation of the evidence, the trial Court by the impugned judgment has rightly convicted and sentenced the appellant. This Court does not find any illegality in the said judgment or any grounds for interference. Therefore the appeal is dismissed.
Sd/-
JUDGE KSR