Karnataka High Court
Siddaraju vs The State Of Karnataka on 22 June, 2010
Author: K.L.Manjunath
Bench: K.L.Manjunath
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22% DAY OF JUNE 2010
PRESENT: "
THE HONBLE MR. JUSTICE K.L.MANJU1§A'TH- ..
AND
THE HON'BLE MR. JUSTICE K.N.KESHA.'v';%1$TAf§1¥5f'ANPi "
CRL.A.NO. 1 109/2:007' 'C,/W ~ '
CRL.A.NOs.868/2005 'ANI:i"isS9/C2005; '
In Criminal Appeal No. 110'9°i/.:2'007: V
BETWEEN: ' V' 'V
Siddaraju,
S/O Rachaiahg'
Major, _ C
Residing ai{..vR.ai'£1manah'a]1i,.
Mysore
Mysore District _ .. ' ~ ...Appei1ant
{By Sri.V_ary K, Advocate]
' ;'I'*he State Karnataka,
By Mysore Viiciuth Police
" Regjresefifeefi by SPF. .....RespCnder1t
Bhavarii Singh, SPP}
This Criminal Appeal is filed under Section 374(2)
' *._ 0f-'The Code of Criminal Procedure, praying to grant
leave to appeal against the Judgment dated 26/ 3 / 2005
" IN S.C.NO. 351/2000 on the file of the Presiding Officer,
2
Fast Track Court ~11, Mysore-- Convicting the
Appellant/Accused No.2 for the offence Punishabie
Under Section 302 of IPC and sentencing him to
undergo life imprisonment and pay a fine.g of
Rs. 10,000 / -- and ID of payment of fine to under.g'o.V~~f_or
Syears. W.
In Criminal Appeal No. 868/2005
BETWEEN: 0'
Javara,
S/o. Rachaiah,
Residing at RamanahailiVi11ageC; _
Mysore Taiuk, ,
Mysore District. ' 3. . ~ ....Appe1Iant
[By Sri. Syed Akbar Pa:=:.ha,, -Bi/Iahantesh
S.Hosmath. I V' ' '
State Karnataka,
By its Mysore Solith Policée
& High Court of_Karnataka,
Bailigaiore. " ~ A V ..Respondent
.0 mysri.nye.tgahavan1smgh, SPF]
A . ' Appeal is filed under Section 374(2)
o1"»-.__the_,- ooyae of Criminal Procedure, praying to grant
leave to appeal against the Judgment dated 26/8/2005
iipassevd. "by the Fast Track Court -11, Mysore in S.C.No.
2000 -- Convicting the Appellant/Accused No.2 for
offence Punishabie Under Section 307 of IPC and
'sentencing him to undergo S1 for 5 years and to pay a
C3
3
fine of Rs.E3,000/-, 1.1). to undergo S.I for 1 year for the
offence punishable under section 307 of IPC.
In Criminal Amaeai No. 869/2005
BETWEEN:
Kariya,
S/o Late Javaraiah,
Aged Major,
Occ: Agriculture,
Residing at Ramanahalii village,
Mysore Taluk, '
Mysore District. . ,.'..A_'ppe'}1an't
[By Sri. Syed Akbar Pasha, for Mahgantesh S.
Hosmath, SPP] " A 3 *
AND:
Stateizof = __ i ,
By its 'Mysore .South" Ponce...
& P.P. HighiiCoi:rt"'0Cf Kaztnataka,
Bangalore." ~ V_ ' ..Respondent
Bh.aVa1"1'i'Singh, SPP]
-- Appeal is Filed under Section 374(2)
of '-the' 'Cjode:['0f Criminal Procedure, praying to grant
leave to~ap.pea1 against the Judgment dated 26/3/2005
passedby the Fast Track Court --II, Mysore in S.C.No.
A351/2.000 -- Convicting the Appellant/Accused No.2 for
the, offence Punishable Under Section 307 of IPC and
' sentencing him to undergo 8.1 for 5 years and to pay a
__ ~ fine of Rs.E3,000/~--, LD. to undergo S.I for 1 year for the
C' 2 offence punishabie under section 307 of IPC.
=3
4
These Criminal Appeals coming on for hearing this
day, Keshavcmarayana, J., delivered the following:-
JUDGMENT
These three appeals by the accused are directed against the judgment 23.6.2005 passed by the Presiding:A4gO;ffi«cer,A' Court--«ll, Mysore in S.C,No_.35 103.2000 accused No.2 for the offencetpnnishablei Section 302 IPC and accusecI'- forllthe offence punishable under sentencing accused .1,iiiderg.o::p:Vlife:""'ir11prisonment and accused__ -undergo imprisonment for 5 years 0.
'A2. The'A-appellants in Crl.A.Nos.868 and 869 of .0 :20:05_jvir.ere"-accused Nos. 1 and 2, while appellant in ~«C:}.r1.A;i\io';vei._1'09}2007 s accused No.3. Accused Nos. 1 to 3 zllwpere "charged for the offences punishable under » Sections 302 and 307 1'/W 34 IPC inter alia alleging that "the back ground of dispute regarding sharing of ('r is/' compensation amount, at about 9.00 am, on 28.7.2009 on the public road of Rarnmanahalli Village of Mysore District, accused Nos. 1 to 3 by sharing intention picked up quarrel witlir' Hombalarnma and when PW.:T"'"--Devatnhni.aAt'V:»her daughter PW.15--GoWramma abused them also and'-v.,t4g:¥;"}1g3reafter' lNo.lV' assaulted Gowrarnrna andllllllleirarnrna vlv"itl1"'VVchoppers while accused No.3 assaulteldil PW§'l.':3{S_@3manna son of PW.7 and rneaiis of on their heads and Not?'as'sau1tecl"Eiombala1nma on her head by means of dcrowbar and thereby caused grievous ir'1jurie.s'- to'v.her which resulted in the death of Ho~1:nb.ala1nmalllandlV CWs.l4, 15 and 16 sustaining 1 grievous. injuries.
appellants W accused pleaded not guilty for ..t,'r_1__e charges levelled against them and claimed to be 'llltried. the prosecution in order to bring home the guilt ,.
of the accused persons examined PWs. 1 to 22 and got marked EXs.P.1 to P28 and M.Os. l to ll.
4. During the cross--examination., the ;'<:iefence7 got marked Ex.P.1 to 13.3 being the portions»V-At5:f~.,$fit€m'§}'iE« witnesses under Section 3 investigation. The defence of the'-.accused" oneof total denial and that of their further defence that along with CW4 had quarrelled 'connection with sharing of that quarrel Hornbalarrirnav.fi2ttast"'ass--auited as a result of which Jlthat the accused were not responsible death of Hornbalamma or for the ' ;i'n}u.1*ies.csttstained on the persons of PWs. 4, 13 and l5. V__f5;TVhellearned judge of the Fast Track Court, on .A hearing both sides and on appreciation of the oral and lk:'do--clumentary evidence, by the judgment under appeal held that the prosecution has proved beyond reasonable K'! I/ doubt the guilt of the accused persons for the charges levelled against them, therefore accused No. I to 3 were convicted and sentenced as noted earlier..«j"~-Qfieing aggrieved by the said judgment of conviction of sentence, accused Nos. 1 to-3" h-ave"_4preser1ted~tihese 9 appeals.
6. We have heard learned counsel appearing '1 and 3 and Sri.Vishwanat_l1a__ appearing for accused learned SP?
for the respVo1'iden'ilifffitate; -d
7. 4"'SriV.SyedA'Ald)"ar Pasha during his arguments . A vvould"isub.mit asunder;
it ujtxddgment under appeal is perverse. illegal and contra'ry.pfto the evidence on record inasmuch as the _ learned Sessions Judge has not properly appreciated ";_V't'l1e'A evidence on record and has failed to notice the deficiency in the evidence as well as the case of the prosecution. The appreciation of the oral and documentary evidence by the learned Sessions Jndge is contrary to the well settled principles of law appreciation of evidence. Even accordi'ng...:VVto' evidence of PW.l5, on arrival Zofthe 'police the accused went away by throvjnglV_A.the wea*pons--::tl3.ereV itself and police took them"'o:ri'--.thatV. accused' persons were still there atllltiie spot when "the police arrived at the scene ofVoc'cnrre.nce.'.:'no'_. explanation is forthcoming' 'fzjorn the: prose:ctitionyVV.7as to why those accused' not'"'i'Inmediately apprehended and d'etaineCl--. VVVIt'v..--evidence on record that police toopkythe d'ee_eas.eId 'four injured persons to the police 'station: from thlemscene of occurrence and this would defence theory of quarrel between the irriurevd' persons and the deceased. The overt acts _ alleged: to have been committed by these accused 'r;_'pcz'sons are not proved satisfactorily. There is no " it acceptable evidence to show that deceased 9 Hombalarnma was shifted to the hospital and that she was treated in any of the hospitals at Mysore nor there is sufficient evidence to indicate that while'-«...d_isaid Hombalamma was being shifted to she breathed her last. On the..oth.er record would indicate that decde-as:c_dA' house itself. Therefore, the of"the'proseei,ition that" V deceased Hombalamrna died.nr_:o1{~»..o,grccoiin'te of injuries inflicted by the accudsed fdoiibtful, as such, Iearned Sessions' Judge is..'inotA'j'tijsti_fiejci in convicting the accu:sedi'personsffV ii' _"a, " .a;3pearing for Accused No.2 sixbrnitted iLTi€1t.,___$?VF:n according to the case of the ' V.Vp'rosecution';v the accused came to the deceased bare quarreled for the share in the cornpensation, but there is absoluteiy no evidence to that the deceased reused to give share which Vdfienraged the accused persons to go home and bring the {E 10 weapons, therefore, the prosecution has utterly failed to prove the motive attributed. He also reiterated the arguments of Sri.Pasha with regard to lack of'eyfid_ence in respect of treatment to deceased':--- eithe'1~ K.R.I-lospital or at any other .hospital.'_'' absence of any acceptable evidence deceased died on the way He'?
submitted that the rec.ove1,y"'of'Vcye*eapon is"nAott"proved by independent witness.' He contenvded that the iron crowbar sjaid«.__:j'to fihave' 'been..__.sie'ized during the inves'tigation. _wa.§{i1ot*»s'ent for examination and opinion of thedoetorWhofco'nduct'ed post mortem nor the same was sent "to_V'Forensico"'expert for their opinion. In the abseric-e "of anyvflrriedical and forensic evidence to the Voeffecttthatooinjuries found on the person of the deceased cou1dV___vhay'eAobeen caused by user of crowbar~--MO.4, the _ learried Sessions Judge is not justified in convicting o "'._VVacc;used No. 2 for the offence punishable under Section "V302 IPC. Therefore he sought for setting aside the ~:t/ 11 judgment under appeal and for acquitting the accused persons.
E0. Per contra. Sri.Bhavani Singh, sough_t~._to justify the judgment under appeal contended that learned Sessions._JLigdge"
appreciation of the oral and do.cun?ien'tary-- recorded a' finding that the -.pi°~osecutiori«,ha_s V°p:r'ove'd the" V incident of assault the" persons on the deceased and other the're_fore__. the judgment do not sufferijfronr or illegality or irregrilarityljlvas's1;ich"j1idgn1ent under appeal do not call for interference"'ojfthisfiourt. He further contended that and injured eye Witnesses and the ' V.pr°ese~nce'of"vthe injuries on their persons having been 'pro'Vedl§y*; rnedical evidence, their evidence cannot be hghtlgfhrushed aside. Therefore, the learned Sessions A ldVJ£id_ge is justified in accepting the testimony of these witnesses who are injured eye witnesses, as such, there ifs»/"' 1.3 shifted to NIMHANS, Bangalore died on the way, therefore he submitted that the judgment under appeal do not call for interference by this Court.
11. We have bestowed up considerations to the subrnissaionsrArnade._'byW}eamed counsel on both sides arid closely sczrutinizedll the_°; evidence both oral and l l H'
12. In the facts the case, the points that arisefor COI1{Sl'C'i:€I;Et:.i.O'ft~.l1'l"th€S€ appeals are, Judge is justified lthehprosecution has proved the
-- .. A n0f.t'he."aclcused Nos. 1 and 3 for the offence punishabllellunder Section 307 IPC and guilt of No.2 for the offence punishable ' Section 302 {PC beyond reasonable fl doubt?
1.4
2. Whether the learned Sessions Judge is justified in convicting the accused persons for the aforesaid offences and
3. Whether the judgment under interference by this court'? pp
13.According to the "case accused No. 1 is the __son andfTa~ccu_ysed."Nos. 2 3 are grand sons of Javara;'ah~,.__ of deceased Hombalamniaf p_ daughter of deceased;Wlil«1_e;:l§V{ is son and PWJL5- Gowram:na,V'i's~.'th:ei of PW.'7. It is the further case of 'tape proseciitioii that certain land belonging to p_ '~aras__ps.ought to be acquired by KIADB and ' was payable in respect of said land. The f'acclusedfjacfcording to the prosecution, were insisting a shaateylllin the compensation payable in respect of said and in that connection there used to be frequent léquarrels. According to the prosecution, on 28.7.2000 at ..i&,/* 15 about 9.00 p.rr1. all the accused came near the house of Honibalamrna and demanded a share in the compensation amount. Thereafter the accusedj'We'nt"-to their houses and each of them brought accused No. l and 3 with chopperswivhile it with a crowbar came back and soo_n"--after t}1Cy'»FCtli«1;f1£iid',i_ accused No 1 and 3 on' seeing this Hombalairinia trnied intervene"and at that time accused No 2 assaulted' on her head with crowbaréepnd other 'th_e3body and thereby causedhllgrietfgugIiféjifijuries. Atlthat time PWS. 13, 15 and CW.4"Whopare_.the_:children of PW.7 tried to intervene juncture" they were also assaulted by .accus'ed No 1 with choppers as a result PWs.7, 13 pl grievous injuries. By that time on hearing the news of assault, police came there in a Van as and took all the injured persons to the police station "'..vVWiiere PW.'7 made a statement regarding the incident "and the same Was reduced into writing as per Ex.P.2 E6 based on which the police registered the case in Crime No.153/2000 for the offence punishabie under Section 307 r/ W 34 IPC. Thereafter all the injured perséonjs-.._vv'ere taken to K.R.Hospita1 where they were per the advise of the doctor inj.ure.d< Hcin1b'aia;mrnae.Wa:s'd"
being shifted to NIMHANS, Bangaioia im' on the way near Srirangapatna, s1.'ie.__breVathé'd'her":lastywd therefore, the dead body bac'k~-tostghe house of PW.7 and intimationddwas -police about the death. Thereafter house, saw the deadV'dboVdyi;.:iV5»v4V punishable under Section already registered in Crime No51E-3/ further statement of Pw.8 was Thereafter the inquest was held body and later it was subjected to post rfrorterr1~.eXa1nination. During the investigation the d is accused persons were arrested. Weapons of the offence were seized from the scene of occurrence during the spot rnahazar and during the investigation the 17 statements of witnesses were recorded and after completing the investigation charge sheet carne____to be filed.
14». As noticed above according of prosecution, PW."/"', 13 and were} witnesses and PW.l8 wasdan independent"'eye_yvitness1V"; During her evidence' before§V;4_l:the Qourt did not support the case The learned Sessions Judge _.after'" testimony of PWS. 7, ::l«3l'~lthlatmltheir testimony is cogent, ,arid:""reliab1e. The learned Sessions Judge _also.ll they were injured eye witnesses there_fore, their evidence carries more ' .:Weigl1tage;vr.ljLe_arned Sessions Judge also noticed that "presence-l'ii'j_o:fHPWs. 7 , 13 and 15 at the scene of occurrence is quite natural as they were residents of A . locality and their say that while they tired to 'intervene with the quarrel they were assaulted is quite «:1 /....
,,// 18 natural, therefore, the learned Sessions Judge by placing reliance on the evidence of these uritnesseshas come to the conclusion that the prosecution' . the incident of assault on Homb-alam1'na'_"blyiaccus'c.d;ANo_,uh' 2 and on PWs.7, 13 and 15' by a°ocu.s_ed Nb; are of the opinion that the 'learned'Sessi.con:sll'Ju'dge has"
rightly convicted the appellants sed.
15. The_:'le_arned"'co'uns.ely_'ibr'Vappellants, as noticed technical defects in the .... canvassed by the learned "appellants would not take away the caseliof the prosecfition. at best they can be termed on"l'tl1e.___.part of Investigating Officer. Merely V lapses of investigating Officer during investigation, the case of the prosecution cannot be rejected nor viewed with suspicion. Even from the "defence put forth by the accused, it is clear that Hornbalamma received injuries on account of assault 19 and she died on account of such injuries. Therefore, the accused persons have not disputed the nat.i}tre'~~.of death of Hornbalarnrna being homicidal. defence was that they were dxforrythedddd injuries found on the bodies of 7, 13 and 15, as according'-to""theIn, was" 3 assaulted by her daughter,» children and not by accused. Thea' 3% Judge has elaborately forth by the accused as not probable in the evidence of PWs. '7, 13 and " _ In "the._____light of the arguments of learned
3 appellants, we closely scrutinized the dltedstimonlicsltilof PWs.7, 13 and 15. No doubt they are closely: related to deceased. However the testimony of V.rel2_'.ted witnesses cannot be rejected merely because they are related to the injured or the deceased. In fact in 21 witnesses, it is reasonable to hold that they were present at the scene of occurrence and they s_usta._ir..ed those injuries on account of assault. A111 witnesses have consistentiy statedras to K V' each of these accused persons.°'.VT'heir evidence impeached in any way 'in"'~..ythe V' CroSys+'e;iairiii1ation."~V According to the consisgtenteviidencefl oi these..~vvitnesses accused Nos. 1 and chopper and at that tirI¢+~g"€Ag;:}1e11§;A'1' to intervene accused crowbar on the head and dhandflzthereafter accused No 1 and 15 and CW4. Having regard to _fact_ that theevidence of these witnesses is consistent « and c"oge_nt_and their evidence having not been seriously in the crcss--examination and in the ab.sence'»of any circumstance to indicate any omission, " improvement or discrepancy in their evidence, the iearned Sessions Judge, has not committed any error in d accepting their testimony. No doubt, the prosecution e 22 has not placed any documentary evidence to show that Hombalamma was taken to K.R.Hospita1 for on the day of the incident and later she NIMI-IANS, Bangalore on the nexttday. it 13 and 15, in their evidence this fact. As could be seen'--frorn the »cr0sps4.e:S:'an1i11ation,"V V the accused have not~contro"verted"'this evidence on the part of these witnesses the injured HombaIamrna"toj' the next day she breathing' her to NIMHANS.
sangéioig;~I;§wV_d.f3§VHs§adfconstable has also stated in his evidence that at 10.30 pm., when he was in st'ation,l Pw.'7"can1e to police station gave a statement into writing as per Ex.P.4 and along and 15, CW.4 he came to the police station thereafter he sent all the injured persons to V ' £i..4_R.H'ospital through Pc.100. There is absolutely nothing in the cross--examination of PW.5 to discredit H his evidence. Thus there is consistent evidence to the 23 effect that deceased Hornbalamrna was taken to K.R.Hospita1 along with other injured persons _ andiishe breathed her last while being shifted . Bangalore. Therefore there "
contention of the learned counsel this regard. No doubt ntfitnessi has;"not":been'Vd' cross--examined duriflg the" :tifi:R\I"'vs.1?efore'V-thei learned Sessions Judge. It the prosecution to examine £he charge sheet.
It is the than the quantity of evidence f:jv're'_1vevant}VV'Vifherefore, there is no substanpcedin that non--exarnination of CW'.4 is fatai to the"-prosecution _ be it is in the evidence that when police "a_r'i'ived'af;_ the scene of occurrence the accused persons werefstill there and they ran away throwing their 3 vyiteapons and police did not make any efforts to apprehend the accused persons. What is required to be i 25 cannot be accepted. The learned Sessions Judge has rightly rejected the defence put forth by the Having regard to nature of evidence placed:-.onf're'c--ord,' we are of the opinion that ieairnedy "
justified in accepting the testirnony A' of based on such evidence convicted the acycuse<1"persons§" V Having regard to ,evidence'''' ddfjccporddd' ~, learned Sessions Judge is accused Nos 1 and 3 for the Section 307 IPC and the offence punishable not find any perversity, illegaiity or in the judgment under appeal assuch theAAsa3.ne."'doT.not call for interference by this A There 'merit in these appeals.
._ result, the appeals are dismissed. The j{i'dgrnent:""of conviction and order of sentence passed by h * the learned Sessions Judge is confirmed. The bail and surety bonds of accused Nos.1 and 3 are hereby . cancelled.
26
20. Accused Nos. 1 and 3 who are the appellants in Cr1.A.Nos. 868/2005 and 869/2005, are ditfectedto surrender themselves before the learned within. a period of one month V-from 'today; a Uepon._'_sA11ch V' appearance, the learned Spessiodnps them to prison for serving'th'e--_sente~nce._as o--rde'red. If' Accused Nos. 1 anid..V_A'3 fail 'Vs'urrende'1*A before the learned Sessions dd the iearned Sessions shall steps to secure their presence' to prison.
Sd/-
JUDGE .....
JUDGE Rm