Karnataka High Court
Sri Anjinappa vs The State Of Karnataka on 8 August, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 8TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.473 OF 2007
BETWEEN:
1. Sri. Anjinappa,
S/o. Hanumanthappa,
Aged 49 years,
Occupation: Coolie.
2. Hemanna,
S/o. Anjinappa,
Aged 20 years,
Occupation: Coolie.
3. Kum. Shekamma,
D/o. Anjinappa,
Aged 20 years,
All are residents of
Hagalur village,
Siruguppa Taluk,
Bellary District. ... APPELLANTS.
(Shri J. Basavaraj, Advocate for Appellants 2 and 3,
Appeal abated in respect of Appellant No.1)
AND:
The State of Karnataka,
Represented by its Public Prosecutor,
2
High Court of Karnataka,
Bangalore. ... RESPONDENT.
(Shri. V.M. Banakar, Additional State Public Prosecutor)
This Criminal appeal is filed under Section 374 Cr.P.C
against the judgment dated 14.02.2007 passed by the
Presiding Officer, Fast Track Court -I, Bellary, in
S.C.No.95/2006, convicting the appellants - accused Nos.1
to 3 for the offence punishable under Section 304 Part-II
read with Section 34 of IPC and sentencing them to undergo
R.I for 5 years and also to pay fine of Rs.2,000/- each and
I.D to undergo S.I. for six months for the offence punishable
under Section 304 Part-II read with Section 34 of IPC.
This appeal coming on for hearing, this day, the court
delivered the following:
JUDGMENT
Heard the learned Counsel for the appellants and the learned Additional State Public Prosecutor.
2. The facts of the case are as follows:
One Huligemma of Hagalur had lodged a complaint before the Sirigeri Police Station, alleging that Huligemma was residing along with her son, Hulugappa, his wife and two children.3
On 01.02.2006, the complainant along with her daughter-in-law and the children were sleeping in the house. Hulugappa, who had gone out, had not returned home. She was under the impression that he might have gone to attend the marriage of the sister of one Sheshappa, known to them. However, at 12.00 mid night, one Savarappa, her nephew, had come and knocked at the door and informed that there was a quarrel between Anjinappa and Hulugappa. The complainant, her daughter-in-law Lakshmamma and Savarappa immediately proceeded to the spot and witnessed Anjinappa, his son Hemanna and daughter Shekamma assaulting Hulugappa in front of their house. The complainant questioned Anjinappa as to why they were assaulting him. Anjinappa had informed her that, Hulugappa had come to outrage the modesty of his daughter Shekamma and it is for that reason, that they were assaulting him and they continued to assault him. It is stated that, Anjinappa assaulted Hulugappa with a stone on the right side of his eyebrow and he was in fact 4 thrown to the ground and Anjinappa continued to assault him with the same stone repeatedly on his chest with much force. The son of the complainant was screaming that he was about to die, but Hemanna, the second appellant herein, also assaulted him with a stick on the left hand and knee joint of the deceased. Shekamma, the third appellant, assaulted by punching and kicking the deceased. It is only with much difficulty, that the complainant, her daughter-in-law, intervened and stopped the assault. The accused had then left the spot and they had gone away asserting that, that was not end of it and that they will ensure that he is taught a further lesson the next day. It is also stated that, at the time of the incident, there were others present, namely, one other person by the very name, Hulugappa, Hanumanthamma and Chalavadi Veeresh, who had witnessed the incident, and who had then advised the complainant to take her son home and to take further steps in the morning. Hulugappa, however, complained of severe pain in the right portion of his chest, which had began to swell up. 5 He had also sustained injuries on other parts of his body. Savarappa called a private doctor, who gave Hulugappa first aid treatment and advised that he be shifted immediately to Bellary for further treatment. At this, Savarappa had gone out to being a vehicle to transport Hulugappa to Bellary, but in the meanwhile, Hulugappa died at 5.00 a.m. It is then, on the advice of other persons of the locality, Huligemma had decided to lodge a complaint.
On the basis of the complaint, a case was registered in Crime No.11/2006 for offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity). Further investigation was taken up and statements of the witnesses were recorded. The body was sent for post- mortem and the accused were arrested and produced before the Court. The weapons used in the incident were also seized. After completion of investigation, a charge sheet was filed before the Magistrate, who in turn had 6 committed the case to the Court of Sessions. A charge having been framed against the accused, the accused pleaded not guilty and claimed to be tried.
The prosecution, thereafter, examined 12 witnesses and got marked Exs. P1 to P11 and Material Objects 1 and
2. On consideration of the evidence and the rival contentions, the following points were framed for consideration:
i. Whether the prosecution has proved beyond all reasonable doubt that the death of Hulugappa was homicidal one?
ii. Whether the prosecution has further proved
beyond all reasonable doubt that on
02.02.2006 at 12.30 am, in front of the house of accused Nos.1 to 3 at village Hagalur, the accused Nos. 1 to 3 in furtherance of their common intention to kill Hulugappa assaulted him by stones, stick and by hand and caused injuries and said Hulugappa succumbed to the injuries at about 5.00 a.m.?
iii. What order?7
Point No. 1 and 2 were held in the affirmative and the accused was convicted to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs.2,000/- each for an offence punishable under Section 304 Part II read with Section 34 of the IPC, while giving accused No.2 a set off for the period, for which he had undergone imprisonment. It is that, which is under challenge in the present appeal.
3. During the pendency of this appeal, appellant No.1 is said to have died. The appeal by appellant No.1, therefore, abates. Insofar as the appellant Nos. 2 and 3 are concerned, the learned Counsel for the appellants, while taking this Court through the record, would submit that the Court below has not addressed the evidence on record in its right perspective. It is pointed out that the claim of the eye witnesses that the deceased had sustained bleeding injuries, whereas there is no evidence on record that the weapons, namely, Material Objects 1 and 2, being blood stained and insofar as the seizure 8 panchanama is concerned, it is also not proved, since the witnesses had turned hostile. Therefore, the material objects that were attributed as being the weapons used by accused Nos. 1 and 2 were not established to be the actual weapons allegedly used by the accused. It is also pointed out that, PWs. 5 to 7 were interested witnesses and therefore, it could be presumed that, they were keen on ensuring the conviction of the appellants and their evidence was, therefore, not trustworthy.
4. The only independent witnesses who were material to bring home the charge against the accused were PWs 2, 3 and 8 and when those witnesses had not supported the case of the prosecution, it could not be said that there was reliable evidence on the basis of which the charge could be held proved. Insofar as the other material evidence that was sought to be produced before the court, namely the clothes of the deceased Hulugappa, it was not established that the said clothes were blood-stained. This by itself is sufficient to have negated the case of the 9 prosecution namely that, neither the deceased was found with any bleeding injuries nor was it established that the alleged weapons used were in fact the weapons that had caused any such injuries. And the absence of blood stains on the clothes of Hulugappa did not advance the case of the prosecution at all. PWs 5 to 7 had categorically stated that according to them, blood was oozing from the mouth and nose of the deceased and that on account of which his clothes were stained with blood. If this is established as a fact on the basis of the above evidence, the court below was not justified in holding that the case has been proved beyond all doubt. The counsel would also submit that the court below found that it was not a case where an offence punishable under Section 302 IPC was made out, but the same reasoning would apply insofar as an offence punishable under Section 304 Part-II IPC as well and therefore, there was no justification in holding that the offence under Section 304 Part-II had been made out. The learned counsel in the alternative would also submit that assuming that the deceased had been assaulted by the 10 appellants, the reason for the same can easily be found. In that, it was alleged that in the middle of the night, the deceased who was intoxicated with alcohol and being in the habit of teasing Appellant No.3 time and again though he was a married man, was so infatuated with her that out of sheer lust, had proceeded to her house and tried to entice her to join him in the middle of the night, though he knew that appellants 1 and 2 were also present in her house. Since she had raised an alarm on the deceased having approached her, alerting appellants 1 and 2 who in turn were enraged by the conduct of the deceased, had assaulted him in a fit of anger, which was but natural of a father and a brother of an unmarried girl and therefore, the assault was not premeditated or with an intention to cause the death of the deceased. It is further pointed out that the material on record and the evidence of the prosecution is to the effect that the deceased had suffered five injuries in all. Injury Nos.1 and 2 were caused to the arm of the deceased and was said to be inflicted by Accused No.2 and injuries to the chest region and the 11 injury near the eyebrow namely, injuries 3 and 4 had been caused by Accused No.1. There are no other injuries which could be attributed to Accused No.3. Since Accused No.1 is no more, the cause of death being attributed to the injuries 3 and 4 caused by Accused No.1, it would be futile to punish Accused Nos.2 and 3 in respect of injuries caused by Accused No.1 which has brought about the death, even according to the prosecution.
5. In the above circumstances, it cannot be said that there was a common intention on the part of the appellants in causing the death of the deceased. The only reason for the assault is the sudden provocation by the deceased trying to molest Appellant No.3 who was a young woman of 19 and since it was in the dead of the night and the Appellants 1 and 2 having been awakened from slumber, have naturally reacted with rage and have assaulted the deceased. This cannot be attributed to a premeditated cold blooded murder and could at best be attributed to Accused No.1 alone and not Accused Nos.2 12 and 3 as well and certainly not against Accused No.3 against whom there is no allegation of having attacked with any weapon except that there are statements of witnesses who saw her abusing him and kicking him. That by itself had not left any marks of injury nor could have caused his death. Therefore, the learned counsel would submit that even assuming that the incident has occurred in the fashion as stated above, the punishment imposed on Accused Nos.2 and 3 is unwarranted, in that, accused No.3 could not be convicted at all, and the punishment imposed on Accused No.2 is wholly disproportionate to the alleged offence committed by the said accused in the face of the evidence of the prosecution itself and therefore, seeks reconsideration of the judgment of the court below.
6. While the learned Additional State Public Prosecutor would seek to justify the judgment of the court below and would contend that the Trial Court was fully aware of the nature of the offence and it is for this reason 13 that the court has considered the offence as one punishable under Section 304 Part-II and not one under Section 302 of the IPC. Hence, the arguments put forth by the learned counsel for the appellant in two parts, firstly that the appeal itself should be allowed and the judgment be set-aside in view of inconsistencies and discrepancies that are projected, are not really discrepancies which would go to the root of the matter. The same are not unusual in a trial that goes on for several years and it is by virtue of the fact that the trial takes place years after the incident, that there are seeming discrepancies in the evidence of witnesses. That by itself cannot be construed as aspects going to the root of the matter. The commission of the offence has been established beyond all reasonable doubt. The death of the deceased is not in dispute. The presence of the accused is also not in dispute. Though a theory was sought to be put forth that the deceased had died as a result of a motor accident, the theory was abandoned and the appellants have chosen to change their tactics in seeking reconsideration as is done 14 in the present appeal as well. Since the counsel for the appellants seeks consideration of the case in the alternative, the learned Additional State Public Prosecutor would submit that there is no warrant for interference of any aspect including the quantum of punishment.
The involvement of the accused is not in serious dispute. The fact that the death has occasioned on account of the injuries inflicted by the Appellant No.1 and not by Appellant No.2 or Appellant No.3, is not so material, as the attack on the deceased was by all the three of them and each exhorting the other to assault the accused. There being sufficient common intention on their part to bring about the death of the accused though it was not intentional and therefore, would submit that there is no warrant for interference by this Court.
7. Given the above facts and circumstances, it is evident that the manner in which the incident has taken place is to be found in the alternative argument canvassed by the learned counsel for the appellant. It was certainly 15 in a fit of rage that the accused have attacked the deceased. When it is on record that the death has been caused by the injuries 3 and 4 found on the body of the deceased and which have been attributed as having been inflicted by Appellant No.1, the court below having imposed the punishment uniformly on all the appellants, is therefore inexplicable. Insofar as the Appellant No.3 is concerned, there is no evidence at all as regards the said appellant having caused any injuries which have left behind any sign of such attack by her. That being so, there was certainly no justification in imposing a severe punishment on Accused No.3. Insofar as Accused No.2 is concerned, again the evidence on record is inconsistent. Though there are two injuries mentioned in the post- mortem, the statement of witnesses is to the effect that Accused No.2 had inflicted one injury with a stick on the forearm of the deceased. Beyond this, there is no evidence attributed against Accused No.2 of having caused any other injuries. In that view of the matter, the similar punishment as has been inflicted on Accused No.1 being 16 also imposed on Appellant No.2, is not justified. Since Appellant No.1 is no more, even if it could be held that he was responsible for having inflicted injury Nos.3 and 4 shown in the post-mortem report, which has caused the death of the deceased, it is now immaterial, since he is dead. Therefore, on the basis of the evidence of the prosecution, if it can be said that there was no act attributed to Appellant No.3 which had possibly caused the death of the deceased, she would have to be acquitted without question. Insofar as Appellant No.2 is concerned, as already pointed out, since the injuries said to have been caused by him were not to the vital parts of the body of the deceased, it cannot be said that he had caused the death of the deceased. If it is also to be accepted that there was no pre-meditation in the assault by the accused on the deceased, and it was on the spur of the moment that the attack had taken place and for good reason that Appellants 1 and 2 were enraged, since the deceased was trying to molest Accused No.3, it cannot be said that the appellants should be treated as common criminals who 17 were carrying out a pre-meditated cold-blooded act. Therefore, it would require to modify the sentence imposed on Appellant No.2 as well. Since he was aged about 20 in the year 2006 and he would be in the prime of his age, if the appellant No.2 is to undergo imprisonment of five years that is now imposed, he would be well past his prime by the time he is released from jail. This is a punishment which is certainly disproportionate, in view of the fact that though the offences alleged against him are of a serious nature, his role that is found on the basis of the evidence of the prosecution is not to the extent as that of Appellant No.1 and therefore, he would require to be placed on a different footing.
Accordingly, the appeal insofar as the Appellant No.3 is concerned, is allowed. Appellant No.3 is acquitted of the offences alleged. Insofar as Accused No.2 is concerned, exercising power under Section 4 of the Probation of Offenders Act, 1958, the appellant No.2 is released on probation of good conduct and he shall enter 18 into a bond for a sum of Rs.25,000/- with a surety for a like sum, to appear and receive sentence when called upon during the period of one year and in the meanwhile, to keep peace and be of good behaviour.
With that modification, the appeal stands allowed in part. The fine amount deposited on behalf of Appellant No.3 shall be refunded.
Sd/-
JUDGE GAB/KS