Karnataka High Court
Shivashankar @ Shivu vs The State Of Karnataka on 7 January, 2019
Author: K. N. Phaneendra
Bench: K. N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2019
PRESENT
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL APPEAL NO.528/2016
BETWEEN:
SHIVASHANKAR @ SHIVU
S/O GOVINDASWAMY
AGED ABOUT 24 YEARS
CONSTRUCTING BUILDING
3RD CROSS, ANJANDARI LAYOUT
KONANAKUNTE
BENGALURU - 560 062.
...APPELLANT
(BY SMT. GEETHA J. KADUR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
SUBRAMANYAPURA POLICE STATION
BENGALURU - 560 061
REP. BY SPP, HIGH COURT
BENGALURU. ... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT OF CONVICTION DATED
25.07.2014 AND ORDER OF SENTENCE DATED
02.08.2014 PASSED BY THE P.O., F.T.C. - VIII,
BENGALURU, IN S.C.NO.689/2011 - CONVICTING THE
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APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR
ADMISSION THIS DAY, B.A. PATIL, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant/accused has preferred this appeal assailing the judgment of conviction and order of sentence passed by the Fast Track Court VIII, Bengaluru City in SC No.689/2011 dated 25.7.2014/2.8.2014.
2. We have heard the learned counsel for the appellant and the learned Additional State Public Prosecutor for the respondent - State.
3. The gist of the case as per the complaint Ex.P-1 is that:
Complainant - Dakshinamurthy S/o Sampath, was working as Helper in the construction of an apartment constructed by one Sharma at Anjanadri lay out under his distant relative and Mason the deceased Dharmalingam. It is further stated in the -3- complaint that he was residing in the said under construction building. It is further stated in the complaint that Dharmalingam was staying in a temporary shed constructed in front of the under construction building, another new building which was also being constructed opposite to this building and in the said building accused Shivanna @ Shivu @ Shivashankar and others were residing and working. It is further alleged in the complaint that since one month prior to the filing of the complaint accused had illicit relationship with one Gowramma and about five days prior to filing of the complaint deceased Dharmalingam called Gowramma to have a physical relationship with him, and this was noticed by the accused and as such, on 27.3.2011 at about 8.30 p.m., some quarrel took place and the said quarrel was pacified by the complainant and others.
On the same day, after taking the dinner, they slept and at about 12 in the intervening mid night of 27/28.3.2011, they heard a shouting voice from the shed of Dharmalingam. Immediately all the workers -4- including the complainant went near the said shed of Dharmalingam and there they found the accused assaulting Dharmalingam on his head with iron rod and he has fallen on the ground and immediately after seeing all these people, accused ran away from the spot by holding iron rod and thereafter the said matter was intimated to the contractor and thereafter complainant went and filed the complaint. On the basis of the said complaint, a case was registered in Crime No.235/2011 for the offence punishable under section 302 of IPC. On the basis of the said complaint, the investigating agency investigated the case and filed charge sheet against the accused.
4. After committal of the case, the Sessions Court took cognizance and after hearing the learned counsels appearing for the parties, charge was framed, read over and explained to him. The accused pleaded not guilty. As he claims to be tried as such, the trial was fixed in order to prove the case of the prosecution. The prosecution got examined 22 -5- witnesses and got marked 13 documents and also marked material objects as MOs.1 to 9 and thereafter, the statement of the accused was recorded by putting the incriminating material as against him, accused denied the incriminating evidence and he has not led any defence evidence in his behalf. After hearing the learned counsels appearing for the parties, the impugned judgment of conviction and sentence was passed, wherein the accused was sentenced to undergo rigorous imprisonment for life and sentenced to pay a fine of Rs.25,000/-, with default sentence of simple imprisonment for three months. Challenging the legality and correctness of the said judgment, the accused/appellant is before this Court.
5. It is the submission of the learned counsel for the appellant that though the prosecution has got examined PWs.3, 4, 5, 12 and 20 as eye-witnesses, their evidence is not trust-worthy and reliable. There are contradictions and omissions with regard to the -6- assault made by the accused with the iron rod. She also further submitted that the eye-witnesses have not specifically stated that the accused assaulted with iron rod and thereafter, he ran away along with the rod, but in the cross-examination of these witnesses discloses the fact that the rod was lying on the spot and subsequently, only for the purpose of investigation, the rod has been recovered at the instance of the accused. She further submitted that the evidence of PW5 cannot be accepted since he has not offered himself for cross- examination. She has further submitted that the alleged incident has taken place at the first instance at about 8.30 p.m., and when the galata took place, at that time along with the accused, brother of Gowramma and others were also present there, but the allegations has been made only against the accused only to inculcate the accused in the said case. She further submitted that the cross examination of all these witnesses clearly goes to show that the rod had not been recovered at the instance of the accused. She further submitted -7- by referring to the evidence of the panch witnesses that though he accompanied with the Investigating Officer he was standing at a distance and he has not noticed accused taking the rod and producing before the Police. Under such circumstances, the recovery which is said to have been proved by the prosecution is not acceptable. She also alternatively submitted that the accused is a young person and he is having old age parents and a lenient view may be taken for the purpose of reducing the sentence. On these grounds, she prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence.
6. Per contra, learned Additional State Public Prosecutor, vehemently argued and submitted that PWs.3, 4, 12 and 20 are the eye-witnesses that they have consistently deposed before the court that it is the accused who has assaulted the deceased with iron rod and the said evidence is also corroborated with the evidence of the doctor PW-8 who has -8- conducted autopsy over the dead body of the deceased. He has further pointed out the cross examination of PW-8 and submitted that even the suggestion which has been made clearly goes to show that the accused has assaulted the deceased with iron rod. He further submitted that contradictions and omissions which have been pointed out are minor contradictions and omissions and they are not going to take away the case of the prosecution. He further submitted that the appellant/accused has not made out any good grounds so as to interfere with the judgment of the trial Court and the same is liable to be confirmed. On these grounds, he prayed to dismiss the appeal.
7. In order to establish the case of the prosecution, prosecution examined 22 witnesses. Before going to consider the submissions made by the learned counsels appearing for the parties, we feel it just and proper to carefully scrutinize the evidence which has been produced before the Court below. -9-
8. PW1 is the Police Constable who carried the dead body to the hospital for conducting the autopsy and after post mortem he handed over the body to the wife of the deceased. PW2 is also the Police Constable who apprehended the accused and produced before the Investigating Officer. PWs.3, 4, 5, 12 and 20 are the star witnesses to the alleged incident. In the evidence of PW3 he has deposed that since six months prior to the incident he was working as a coolie in the apartment near Konankute Cross and the other witnesses were also working in the construction and they used to sleep in the said apartment. He has further deposed that said apartment was constructed by one Sharma and opposite to the said construction one more construction was also going on and there also the deceased and other workers used to sleep and deceased used to sleep in the shed. He has further deposed that the said deceased used to tell that he is loving a woman, the said women used to be loved by
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the accused. He has further deposed that on the date of incident, himself, CW2 and other witnesses were sleeping in the said building and at about 12.30 p.m. they heard the weeping voice and immediately they went there and saw that the accused who is present before the Court was assaulting on the head of the deceased Dharmalingam and the said Dharmalingam has fallen down and the blood was oozing. He has further deposed that again the accused assaulted on the head of the deceased Dharmalingam 4 to 5 times with iron rod and by that time CW2, CW4 also came and the accused ran away from that place and the said Dharmalingam died on the spot. He further deposed that has also given the complaint as per Ex.P1. In the same fashion PWs.4, 12 and 20 have also reiterated the evidence of PW3. During the course of cross-examination, nothing has been elicited so as to discard the evidence of these witnesses.
PW5 though he is also an eyewitness to the alleged incident, he has also deposed by reiterating
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the evidence of PW3, but the records goes to show that after examination-in-chief the case was posted for cross-examination of the said witness at the request of the learned counsel appearing for the accused and subsequently even in spite of issuance of Non-Bailable Warrant he was not secured and he has not been cross-examined. Under such circumstances, the evidence of PW5 will not be going to help the case of the prosecution in any manner.
PW6 is the brother of the wife of the deceased. She informed over the phone regarding the alleged incident and he is also a witness to inquest mahazar panchanama Ex.P2. PW7 is the wife of the deceased. PW12 informed about the accused assaulting the deceased. These witnesses have not supported the case of the prosecution. PW8 is the doctor who conducted autopsy over the body of the deceased and has issued the post mortem report as per Ex.P3. PWs.9 and 10 are also inquest mahazar panchas to Ex.P2. They have also not supported the case of the
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prosecution and they have been treated as hostile. Even during the course of cross-examination the learned Public Prosecutor has not elicited anything so as to substantiate the case of the prosecution.
PW11 is the recovery mahazar pancha of iron rod MO.1 as per Ex.P4. In his evidence he has deposed that police called him near Narayana Building and accused was also present and accused led to Narayana Building and he took out the iron rod MO.1 and the same was seized by drawing mahazar as per Ex.P4. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness.
PW13 is the spot mahazar pancha to Ex.P5. PW14 is the Police Constable who carried the FIR to the jurisdictional Court. PW15 is the contractor working under him and he also spoken with regard to the accused having illicit relationship with PW7 and he received phone call about the alleged incident and came to the spot and thereafter he has also informed the police. PW16 is the Head Constable who carried
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the clothes of the deceased and given the report as per Ex.P7. PW17 is the owner of the house who has given the said building for construction to the builder. He received the said information over the phone and he in turn informed the concerned person to take the body in an Ambulance. PW18 is an ASI who carried the seized articles to FSL for chemical examination. PW19 speaks about the illicit relationship of PW7 with the accused and the deceased and he also deposed that subsequently she came to know about the assault committed by the accused. PW20 is an eyewitness. PW21 is the Police Inspector who received the complaint and issued the FIR and he further investigated the case and filed the charge sheet as against the accused. PW22 is the brother-in-law of the deceased and he has not supported the case of the prosecution and he has been treated as hostile.
9. From the above evidence, it clearly goes to show that there are as many as four eyewitnesses to
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the alleged incident. It is not in dispute that the deceased died homicidal death. In order to establish the said fact the prosecution has also got examined PW8- the doctor who conducted the post mortem and has issued the post mortem report as per Ex.P3. In his opinion he has deposed that the death is due to the injuries suffered by the deceased on his head and other parts of the body and the said evidence is also corroborated with Ex.P2 the inquest mahazar and it is also not disputed by the learned counsel appearing for the appellant/accused. Under such circumstances, we are having no hesitation to hold that the deceased died a homicidal death.
10. As could be seen from the evidence of PWs.3, 4, 12 and 20, they are eyewitnesses to the alleged incident and they have categorically deposed before the Court below that because of the illicit relationship with PW19 and when deceased called PW19 and by inducing the same the quarrel took place at about 8.30 p.m. and the said quarrel was
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also pacified and they all went and slept and in the intervening night the accused went to the shed of the deceased and thereafter accused assaulted with an iron rod.
11. On going through the evidence of PWs.3, 4, 12 and 20 it is unimpeachable evidence of eyewitnesses and this also corroborated with the medical evidence and the post mortem report Ex.P3.
12. On careful scrutiny of the said evidence of the eyewitnesses, there is consistency in their evidence and even nothing has been suggested during the course of cross-examination to discard their evidence. Even the prosecution has also clearly established that there was a motive for the alleged incident. PWs. 3 and 4 have also deposed that on 27.03.2011 at about 8 to 9 p.m. there was galata between the accused and the deceased in connection with Gowramma, as both were loving her. They pacified the said quarrel. During the said night alleged incident has taken place. Be that as it may,
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when there are eyewitnesses to the alleged incident they have categorically deposed before the Court that it is the accused who assaulted the deceased with iron rod and he died on the spot, then under such circumstances, the motive is irrelevant.
13. As could be seen from the evidence of eye witnesses, these witnesses were subjected to lengthy cross-examination, but nothing had come out to discredit the same and they were corroborative on each and every material point, there was no reason to disbelieve them. Even the presence of these witnesses at the place of incident would be most natural because of the reason that they are also working in the construction of building and have slept there. In that light also more credence can be given to such evidence and Court can rely upon it.
14. The learned counsel appearing for the accused has contended that the recovery of the iron rod MO.1 is doubtful. But, as could be seen from the cross-examination contradictory suggestions have
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been made to the witnesses, at one breath it has been suggested that the accused by taking away the rod went away from that place and on the other hand it has been suggested that it was fallen at the place of the incident, but as could be seen from the evidence of PW11, he has categorically deposed before the Court that accused led along with the police and other eyewitnesses and he has produced MO.1 iron rod and the same has been seized by drawing mahazar as per Ex.P4. This evidence is also corroborated with the evidence of PW21 the Investigating Officer, and FSL report Ex.P13, wherein iron rod has been marked as item No.3 and it is stained with human blood and even grouping is 'A' group blood. In that light, the contention of the learned counsel for the appellant is not acceptable, and same is rejected.
15. Looking from any angle the evidence which has been produced before the Court clearly goes to show that it is the accused who has assaulted the
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deceased and caused the death of the deceased Dharmalingam.
16. We noticed some contradictions and omissions, but those contradictions and omissions are not so strong so as to take away the case of the prosecution and to discard the evidence which has been produced before the Court.
17. Even as could be seen from the entire evidence, the construction of the two buildings were not in dispute and even the witnesses who were working in the said construction is also not in dispute and the alleged incident has also not been disputed. Under such circumstances it cannot be held that these witnesses have been subsequently planted only to inculcate the accused. In this case when there is a specific case that the accused was also having illicit relationship with PW19 and when the deceased has called her and because of that a quarrel took place and with that intention the accused went and assaulted the deceased with iron
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rod and caused the death. Under the said circumstances, the evidence led by the prosecution, it is sufficient to prove the guilt of the accused beyond all reasonable doubt.
18. We have carefully and cautiously gone through the judgment of the trial Court. The trial Court after considering all the evidence, material placed on record has clearly given its finding based upon the principles of law. There is no perversity or illegality while coming to the said conclusion and the said judgment of conviction and order of sentence is not required to be interfered with at the hands of this Court.
19. Taking into consideration the above said facts and circumstances we are of the considered opinion that the appellant/accused has not made out any good grounds so as to interfere with the judgment of conviction and order of sentence passed by the trial Court and same requires to be confirmed,
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accordingly it is confirmed. Hence, we pass the following:
ORDER Appeal is devoid of merits and the same is dismissed.
Sd/-
JUDGE Sd/-
JUDGE *AP/-