Karnataka High Court
Hanumappa S/O Bhimashappa Anr vs The State Of Karnataka on 24 January, 2017
Author: A.S. Bopanna
Bench: A.S. Bopanna
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH OF JANUARY, 2017
PRESENT
THE HON'BLE MR.JUSTICE A.S. BOPANNA
AND
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL APPEAL No.3603/2012
Between:
1. Hanumappa
S/o.Bhimshappa
Aged 40 years, Occ: Agriculture
R/o.Haal Jadaladinni
Deodurga Taluk, Raichur Dist.
2. Lachmayya
S/o.Bhimshappa
Aged 45 years
R/o.Haal Jadaladinni
Deodurga Taluk, Raichur Dist.
... Appellants
(By Sri Ishwar Raj S.Chowdapur, Advocate)
And:
The State of Karnataka
Through Gabbur Police Station
Deodurga Taluka
Rep.by its SPP
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Circuit Bench at Gulbarga
... Respondent
(By Sri Prakash Yeli, Addl.SPP)
This appeal is filed under Section 374(2) of Cr.P.C.
by the advocate for the appellants praying to set aside
the order of conviction and sentence dated 7.6.2012 and
8.6.2012 respectively passed in SC.NO.103/2011 on the
file of the Fast Track Court-I at Raichur, convicting the
accused-appellants for the offence punishable under
Section 302 r/w. Section 34 of IPC.
This appeal having been heard, reserved for
judgment and coming on for pronouncement of
judgment this day, B.A. PATIL, J., delivered the
following:-
JUDGMENT
The present appeal is preferred by accused Nos.1 and 2 being aggrieved by the judgment and order of conviction and sentence dated 7/8.6.2012 passed by the Fast Track Court-I, Raichur, in SC.No.103/2011.
2. Case of the prosecution in brief as enumerated in the complaint is that the accused persons are the sons of younger brother of the deceased. There were difference of opinions between the accused and the deceased with regard to sharing of the properties. -3- Accused persons have cultivated the land of the deceased Shivanna on crop share basis and they have sown and grown groundnut. After the harvest the groundnuts were sold and the sale proceeds were equally distributed among themselves. In the said distribution, the accused were given an amount of Rs.6,000/- as per their share. It is further case of the prosecution that the accused persons have demanded share in respect of the groundnut fodder from the deceased and the deceased refused on the ground that the same was required for his bullocks. In that context, accused were not happy and have expressed their anguish towards the deceased. Keeping in mind the said ill-will and anguish, on 11.4.2011 at about 3.00 a.m. when the deceased Shivanna and PW.5 Thayappa were sleeping in a cattle shed, accused persons came there, accused No.2 caught hold of legs of Shivanna, whereas accused No.1 assaulted Shivanna with an axe on the left part of the neck, left shoulder, near left ear -4- and other parts of the body, as a result of which, the said Shivanna died on the spot. It is the further case of the prosecution that PW.5 Thayappa who was sleeping outside the cattle shed has witnessed the incident in question. In the morning he came and informed about the alleged incident to PW.1, the wife of the deceased. Thereafter on receipt of the information, police also came to the spot and after recording the statement of PW.1, a complaint came to be registered.
3. After registration of the complaint, the Investigating Officer, completed the investigation and laid the charge sheet. After filing of the charge sheet, the Committal Court on following the procedure under the Code of Criminal Procedure, committed the case to the Sessions Court. After receipt of the committal papers, the same was registered and on taking cognizance secured the presence of the accused, heard the learned counsel for the accused and the accused -5- persons about the charge, the charge came to be framed. As the accused pleaded not guilty and claimed to be tried, the trial was held.
4. In order to prove its case, the prosecution has examined 12 witnesses and got marked Exhibits P1 to P22 and MO.Nos.1 to 5. After closure of the prosecution evidence, the statement of the accused under Section 313 of Cr.P.C. came to be recorded by putting incriminating material against the accused. Accused denied the same, but they have submitted written version along with certified copy of the judgment in O.S.No.19/1991 which was got marked as Ex.D1. The trial Court after hearing both the parties and on evaluation of the material on record has passed the impugned order convicting the accused, which is now under challenge in this appeal.
5. It is urged by the learned counsel for the appellants-accused that the evidence of PW.5-Thayappa -6- who is said to be the star witness to the prosecution is not an eye witness to the alleged incident and he was not present at the place of alleged incident. It appears that only for the purpose of this case, he has been planted. It is his contention that after receipt of information the traffic police who came to the spot has deposed that he informed the jurisdictional police but the jurisdictional police have come to the place of incident only at 2.00 p.m. and after recording the statement of PW.1, registered the case. PW.5 or any other witnesses who were present at the spot have not informed the police about the alleged crime immediately after the incident. All these aspects would clearly go to show that deliberately the accused persons have been falsely implicated in the crime and there is a delay even in filing the complaint. In that view of the matter it is contended that the prosecution case creates a doubt and as such the accused persons are entitled to be acquitted. To support the said contention, learned -7- counsel for the appellants has relied upon a decision of the Apex Court in the case of Om Prakash & others Vs. State of Haryana, reported in (2014)2 SCC(Cri)710.
6. It is further contended by the learned counsel for the appellants that even though there were so many houses situated nearby the place of incident and even after the alleged heinous crime, which was said to be caused by the accused, nobody came to the place of incident and the police have not examined any such witnesses. The police have chosen to examine only interested and related witnesses. In that light, the trial Court has not properly appreciated the evidence of PW.5. To substantiate the aforesaid contention he has relied upon a decision of the Apex Court in the case of Sone Lal Vs. State of Madhya Pradesh, reported in (2008)14 SCC 692.
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7. It is further contended that even though PW.5 claimed to have bn present at the place of incident, he never tried to rescue the deceased when he saw the accused assaulting the deceased and he has not even called any other person for his help. In that light, the conduct of PW.5 is not natural and reliable. It is also contended that the intention or motive which is said to have been the cause for the alleged incident is for sharing of the fodder of the groundnut which might be valued at about Rs.2000/- to Rs.3,000/-. Keeping in view the said aspect, the motive which has been alleged against the accused is only to suit the prosecution case.
8. It is also contended by the learned counsel for the appellants that to rely upon the evidence of a single witness, it must inspire full confidence in the Court, then only the Court can take into consideration the said evidence. In order to substantiate the said contention, he has relied upon the decision of the Apex Court in the -9- case of Birappa & another Vs. State of Karnataka, reported in AIR 2010 SC 3398.
9. It is his further contention that the blood stains on the axe were not of the deceased and even the FSL report would not substantiate the said fact. Failure on the part of the prosecution to show that the stains of blood were that of the deceased makes the recovery doubtful. In that light, he has relied upon a decision of the Apex Court in the case of Surinder Singh Vs. State of Punjab, reported in 1989 SCC(Cri) 649.
10. He has further contended that even though there were omissions and improvements in the evidence of PWs.1, 5 and other witnesses, the trial Court without proper appreciation of the same, has come to a wrong conclusion and has wrongly convicted the accused- appellants. In support of the said contention, he has relied upon a decision of the Apex Court in the case of Govindaraju Vs. State of Karataka, reported in (2010)1
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SCC (Cri) 1342. On these grounds, he prayed for allowing the appeal, by setting aside the impugned judgment and requested to set free the accused persons.
11. Per contra, the learned Additional SPP appearing for the respondent-State has supported the impugned judgment contending that there is a corroboration of evidence of PW.5 with that of the inquest mahazar-Ex.P4 and the postmortem report at Ex.P13. The evidence of PW.5 would clearly indicate that it is the accused persons who have committed the alleged offence by assaulting the deceased with axe. He has further contended that even though PW.5 was cross-examined at length, nothing has been elicited from his mouth so as to discard his evidence and to show that he was not present at the place of the incident. It is his further contention that the axe has been recovered under seizure mahazar at Ex.P7 at the instance of the accused from his land. The FSL report
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also corroborates with the evidence of the recovery panchas that the said axe was blood strained. He has also contended that the prosecution witnesses, especially PW.5 has deposed about the earlier ill-will and the quarrel between the deceased and the accused with regard to sharing of fodder and he was also present at the time of the incident. The evidence of PW.5 has not been shaken in his cross-examination. He has contended that non-examination of CWs.10 and 11 is not fatal to the case of the prosecution. There is consistency in the evidence of the prosecution witnesses and even the immediate conduct of PW.5 is also natural and probable.
12. He has contended that non-examination of independent witnesses would not affect the case of the prosecution. In the light of the present days' civilization people are generally apprhnsive to come forward for giving any statement in respect of any criminal offence.
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He has also contended that if there is any inconsistency between the medical evidence and the ocular evidence primacy has to be given to the ocular evidence particularly in case of minor discrepancies. To substantiate the said contention, he has relied upon a decision of the Apex Court in the case of Sadhu Saran Singh Vs. State of Uttar Pradesh & others, reported in (2016)2 SCC (Cri) 275. He has contended that in a given circumstance a particular witness behaves in a particular manner, always human behaviour depends upon the facts and circumstances of each given case. Merely because the witness has not reacted in a particular manner in a particular situation, such evidence cannot be discarded. In order to substantiate the said contention, he has also relied upon a decision of the Apex Court in the case of State of Uttar Pradesh Vs. Devendra Singh, reported in AIR 2004 SC 3690.
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13. It is further contended that the trial Court after considering the evidence of all the witnesses has appreciated the same and has rightly convicted the accused persons. Therefore, the appellants have not made out any substantial grounds to interfere with the impugned judgment and hence, the same deserves to the confirmed. On these grounds, he prayed for dismissal of the appeal.
14. Even though several contentions were urgd by the learned counsel appearing on behalf of the accused- appellants, the only issue which is to be considered by us is whether the accused has committed the alleged offence as contended by the prosecution for the alleged motive. In that light, the prosecution has relied upon mainly the evidence of PWs.1 and 5. PW.1 is the wife of the deceased. She has deposed that her husband has entrusted the land for cultivation to the accused on crop share basis and they shared the sale proceeds of
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groundnuts among them equally. Howver, dispute arose with regard to sharing of the groundnut fodder. The accused demanded the deceased to give half of groundnut fodder to them. But the deceased refused to give the fodder as the same was required for his bullocks. Both the accused threatened her husband stating that they would kill him if he refused to give fodder. On the evening of the previous day of the incident at about 8.00 or 9.00 p.m., as usual after having food the deceased went to the cattle shed to sleep. CW.6-Thayappa, the son of sister of the deceased had also gone along with the deceased as his bullocks were also tethered in the said cattle shed. At about 3.00 or 3.30 a.m. on the date of the incident, Thayappa came and informed her that the accused have assaulted her husband and killed him. She began to cry and went along with Thayappa to see the dead body and she found that her husband was killed by assaulting him with axe on the left side of the shoulder and left portion
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of the head. She has deposed that Thayappa told her that on hearing the screaming voice of her husband he got up and saw these two accused assaulting her husband.
15. During the course of cross-examination of PW.1, it has been elicited that a suit in OS.No.19/1991 filed by the deceased against the accused was pending for more than ten years and ultimately the said suit was compromised. It has also been elicited that there was enmity between her husband and the accused.
16. PW.5 who is said to be the star witness has deposed on par with the evidence of PW.1 to the effect that the land was given to the accused persons by the deceased on crop share basis and the sale proceeds were equally shared among them. Thereafter dispute arose between them in respect of sharing of groundnut fodder. PW.5 has deposed that at about 9.00 p.m. after having the food he went to the house of the deceased
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and at that time deceased was sitting in his house after having the food. Thereafter they went together to the cattle shed to sleep. Deceased Shivanna slept on a cot, whereas he slept outside the cattle shed near the door. He has further deposed that at about 3.00 a.m., he suddenly got up after hearing the screaming voice of the deceased Shivanna and he saw in the light that accused No.1 Hanumayya and accused No.2 Lachmayya assaulting Shivanna with an axe. He has deposed that accused No.1 Hanumaiah was assaulting with an axe and accused No.2 was holding the legs of Shivanna. Thereafter, he raised hue and cry and tried to chase the accused, but they ran away from the scene of offence. Thereafter Paramesh and Ramakrishna came there and asked him as to what has happened and he narrated them about the incident in question. Immediately thereafter, he went to the house of PW.1 and informed her about the incident. At that time, Gangappa and
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Rangappa also came and thereafter they all went to the cattle shed.
17. During the course of cross-examination of PW.5, nothing has been elicited so as to discard his evidence even though the said witness has been cross- examined at length. On going through the evidence of PWs.1 and 5, it would indicate that there was ill-will between the accused and the deceased with regard to sharing of the groundnut fodder and prior to the alleged incident, the accused persons had also threatened the deceased with dire consequences. Further, it has come in the evidence of PW.5 that it is the accused persons who came there at about 3.00 a.m. on the date of the incident, accused No.2 caught hold the legs of deceased Shivanna and accused No.1 assaulted the deceased with an axe and caused injuries. PW.5 has raised hue and cry and tried to chase the accused. But however, both the accused ran away from the spot.
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18. Even though it is contended by the learned counsel for the accused-appellants that the presence of PW.5 at the place of incident is doubtful, on going through the cross-examination of PW.5, it indicates that he was very much present at the place of incident. It has also come in the evidence of PW.5 that he used to tether his cattle in the cattle shed of the deceased and the said evidence has been supported and corroborated by the evidence of PW.4-Ganganna to the effect that he has tethered his cattle outside the cattle shed. It is but natural that in the villages if the cattle were tethered in some other new place, usually some person would be sleeping nearby the said place. In that context, if PW.5 is said to have slept outside the cattle shed, the said conduct of PW.5 appears to be probable and natural. PW.5 has deposed that he saw the accused assaulting the deceased in the light. In order to establish the said fact, the prosecution has examined PW.11, The Assistant Executive Engineer of GESCOM who has
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deposed that on 10.4.2011 at 3.00 a.m. there was electricity supply from 11 KV feeder and he has issued the certificate at Ex.P18 to the said effect, which clearly goes to show that at the place of incident there was electricity supply and lights were on. Hence, the conduct of PW.5 that suddenly he got up after hearing the screaming voice of the deceased, he saw the alleged incident, raised hue and cry and tried to chase the accused is natural under the said circumstance.
19. In so far as the contention of the learned counsel for the accused-appellants that even though there were so many houses situated near by the place of incident. immediately after hearing the hue and cry of PW.5 nobody came to the spot is concerned, as could be seen from the evidence of PW.5, Paramesha and Ramakrishna came to the spot immediately after the incident. Leave apart this, when admittedly the incident has taken place at about 3.00 a.m., it is but natural
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that persons in the villages after attending their work in the fields, sleep early inside the houses, they might not have heard the voice of PW.5, it also depends upon the distance between the place of incident and the houses and also raising of the voice by PW.5. When PW.5 has specifically deposed that he has seen the accused assaulting the deceased with axe, then under such circumstances, the said contention of the learned counsel for the accused-appellants cannot be accepted so as to disbelieve the version of PW.5.
20. Further, the learned counsel for the appellants by relying upon the sketch of scene of offence at Ex.P10 has contended that the place of incident is not visible from the place where PW.5 was sleeping as there were walls in between the said place. But as could be seen from the evidence of PW.6 who has prepared the sketch at Ex.P10, he has admitted during the course of his cross-examination that the persons standing outside
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the door cannot see the place of occurrence, i.e., inside the cattle shed, but in the evidence of other witnesses, it has been elicited that the cattle shed has got one door with two planks and it was not having latching system from inside. PW.5 was sleeping about 25 feet away from the door. Even as could be seen from Ex.P10, it is clear that nearby the door at the place of incident, the light has been shown by the side of the door and the deceased was sleeping immediately thereafter near the door. When that being the case, if PW.5 immediately after hearing the screaming voice of the deceased comes near the door, under such circumstances, he can witness the said act of the accused. Even the walls which were said to be the obstacles as per the contention of the learned counsel for the appellants, the said walls are located beyond the place of incident. Merely because there are minor discrepancies in the evidence of the witnesses, the entire evidence cannot be brushed aside. Even PW.6 has also not mentioned in
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Ex.P10 the directions and other indications of the scene of offence. Even though PW.5 has not specifically stated that immediately after hearing the hue and cry of the deceased, he went near the door, when a ghastly incident like murder has been taken place in his presence, that too at about 3.00 a.m. under such circumstances, he might not have stated each and every inch of the act done by him nor can it be expected.
21. In the aforesaid facts and circumstances of the case, if the entire evidence is analyzed with care and caution, there is nothing to discard the same. It is well established principle of law that merely because the single witness is a relative of the deceased, his evidence cannot be discarded. When the evidence of PW.5 inspires the confidence of this Court and his presence also appears to be probable, in that light, the evidence of the said witness can be relied upon, that too when
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the said evidence is corroborated by the evidence of other witnesses.
22. In so far as the contention of the learned counsel for the appellants that no independent witnesses have been examined by the prosecution is concerned, as could be seen from the charge sheet, it reveals that CWs.10 and 11 are the independent witnesses who were staying nearby the place of incident. Even though the said witnesses have not been examined by the prosecution, merely on that ground, the case of the prosecution cannot be doubted when there is other material to show that the accused persons were involved in the alleged crime. Apart from this, it is the domain of the prosecution to decide as to which witness is to be examined and which witness has to be left out. When the eye witness has deposed about the alleged incident and the remaining witnesses have come thereafter, in that light, even non-examination of CWs.10 and 11
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before the Court will not be fatal to the case of the prosecution. Under the said circumstances, the contention taken by the learned counsel for the accused in this behalf does not hold any water.
23. It is contended on behalf of the appellants that there is a delay in filing the complaint and the said delay has not been explained properly and therefore it creates doubt in the case of the prosecution. Admittedly, the alleged incident has taken place at about 3.00 a.m. Immediately after the incident PW.5 went and informed PW.1, the wife of the deceased. Thereafter other witnesses gathered at the place of incident. Traffic police came to the spot at about 12.00 Noon and consequently, at about 2.00 p.m. the jurisdictional police came and recorded the statement of PW.1. Immediately thereafter PW.10 registered the case and issued the FIR as per Ex.P15 and PW.8 has carried
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the FIR to the jurisdictional Court which was delivered at about 5.00 p.m.
24. In that light, taking into consideration the material on record and the sequence of the events, it would indicate that there is no delay in filing the complaint and sending the FIR. Case of the prosecution cannot be doubted on the basis of the delay. If there is an abnormal delay in filing the complaint and if there are other circumstances so as to concoct and build up the prosecution story, then under such circumstances, the said delay has to be taken into consideration. But, on going through the cross-examination of the witnesses by the accused, nowhere such material has been brought. In that light, the contention raised by the learned counsel for the accused in this behalf is not sustainable in law.
25. We are conscious about the fact that there are some minor discrepancies in the evidence led by the
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prosecution. When a rustic villager comes and deposes before the Court, it is but natural that some discrepancies and differences are found while giving the details of the incident and the facts. The Court has to separate grains from the chaff while appreciating the evidence. On going through the evidence and the material on record, we are of the considered opinion that minor discrepancies which have been magnified by the learned counsel for the accused-appellants would not shake the case of the prosecution so as to disbelieve the evidence of the prosecution. We find that there are no other doubtful circumstances which would point out the guilt of the other persons except accused persons. Apart from this, if there are no contradictions and improvements found in the evidence, it would not affect the case of the prosecution in any manner.
26. Having regard to the totality of the facts and circumstances of the case, we are of the considered
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opinion that the appellants-accused have not made out any case to interfere with the impugned judgment. We have gone through the impugned judgment in detail. The trial Court after considering the evidence from all the angles has rightly come to the conclusion and has convicted the accused. As such the impugned judgment and order of conviction and sentence dated 7/8.6.2012 passed by the Fast Track Court-I, Raichur, in SC.No.103/2011 is liable to be confirmed and the same is confirmed.
The trial Court is directed to secure the accused persons and issue necessary conviction warrant against them to undergo the sentence, forthwith.
Accordingly, the appeal stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE *ck/-