Karnataka High Court
The State By Indi Ps vs Rukmabai W/O Beerappa Hanjagi on 12 June, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JUNE 2019
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL APPEAL No. 3688/2011
C/W
CRIMINAL APPEAL No.3632/2011
Crl. A. No.3688/2011
Between:
The State by Indi P.S.,
Represented by Addl. State Public
Prosecutor, Gulbarga
...Appellant
(By Sri Praksh Yeli, Addl. SPP)
And:
Rukmabai W/o Beerappa Hanjagi
Age: 59 years, R/o Hiremasali
...Respondent
(By Sri S.S. Mamadapur, Advocate)
This Criminal Appeal is filed under Section 378(1) & (3)
of Cr.P.C., praying to grant leave to appeal against the
2
judgment and order dated 15.07.2011 passed by the Principal
Sessions Judge at Bijapur, in S.C.No.87/2008 thereby
acquitting the accused No.3 for the offence under Section 109
and 302 R/W Section 34 of IPC and convicting of the accused
No.3 for the offence under Section 326 R/W Section 111 of IPC;
and set aside the aforesaid judgment and order dated
15.07.2011 passed by the Principal Sessions Judge, at Bijapur
in S.C.No.87/2008 thereby acquitting the accused No.3 for the
offence under section 109 and 302 R/W section 34 of IPC and
convicting the accused No.3 for offence under section 326 R/W
section 111 of IPC.
Crl. A. No.3632/2011
Between:
Smt. Rukmabai W/o Late Beerappa Hanjagi
Aged about 60 years, Occ: Household work
R/o Hiremasali, Tq. Indi, Dist: Bijapur
...Appellant
(By Sri S.S. Mamadapur, Advocate)
And:
The State of Karnataka
By its State Public Prosecutor
High Court Building, Circuit Bench
Gulbarga
...Respondent
(By Sri Prakash Yeli, Addl. SPP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to set aside the judgment of conviction and
order of sentence dated 15.7.2011 passed by the Principal
Sessions Judge Bijapur in S.C.No.87/2008 and acquit the
appellant of the aforesaid offences.
3
These appeals coming on for hearing this day,
K.N.PHANEENDRA J., delivered the following:
JUDGMENT
The appellant Rukmabai in Crl. Appeal No.3632/2011 has called in question the judgment of conviction and sentence passed against her in Sessions Case No.87/2008 and 82/2009 wherein the learned Sessions Judge has convicted the appellant Rukmabai for the offence punishable under Sections 326 read with Section 111 of IPC and sentenced her to undergo imprisonment for three years and to pay fine of Rs.5,000/- in default to pay fine, to undergo simple imprisonment for three months.
2. Criminal Appeal No.3688/2011 is filed by the State challenging the sentence passed by the learned Sessions Judge against accused No.3 as said sentence is not adequate for the offences committed by accused No.3. The State has sought for conviction of accused No.3 for the offence punishable under Section 302 of IPC along 4 with accused No.1 and sentenced her for the offences punishable under Section 302 of IPC as the same sentence was passed against accused No.1.
3. Brief factual matrix of the case as emanate from the records are that:
One Mr. Pujappa S/o Tippanna Hachdad who is none other than a brother of the deceased Sarubai lodged a complaint as per Ex.P1 alleging that his sister by name Sarubai was given in marriage to accused No.1 and the said lady was residing with accused No.1 and PW.4 in Hiremasali village. It is stated that accused No.1 had been suspecting the fidelity and conduct of the deceased Sarubai and in that context, he was ill-treating and harassing her even by assaulting her on several occasions. The said Sarubai used to visit the house of the complainant and used to disclose the same before them. Inspite of several panchayats and advice by the complainant, accused No.1 did not mend his conduct. 5
4. In the above said context, it is alleged that on 03.06.2007 in the morning, accused No.1 with the help of accused Nos.2 and 3 has caught hold deceased Sarubai near his house and infact accused No.2 and 3 have instigated accused No.1 to do away with the life of the deceased and on such instigation, accused No.1 has brought an axe and from the hind portion of the axe i.e. blunt portion of iron head of the axe, he assaulted on the head of the deceased and also assaulted with the said axe from its handle on the back and leg of the deceased and thereby deceased had sustained severe injuries to her head and succumbed to those injuries. The complainant has stated that they received the information about the death of Sarubai and went to that particular place and saw the dead body of Sarubai and thereafter lodged a report to police on 03.06.2007. On the basis of which a case was registered against accused Nos.1 to 3 under section 302 of IPC in Crime No.107/2007. After 6 investigation the respondent police have laid a chargesheet against the accused.
5. After securing the presence of the accused in pursuance of the committal order passed by the trial Court, the learned Sessions Judge proceeded to frame charges against accused Nos.1 to 3 for the offences under Sections 302 and 109 read with Section 34 of IPC. During the pendency of the trial, it appears accused No.2 demised as such proceedings abated against accused No.2. After conclusion of the trial, the trial Court has come to the conclusion that accused No.1 has committed the offence under section 302 of IPC and accused No.3 has committed offence under section 326 read with section 111 of IPC and accordingly, convicted and sentenced them as noted supra. Accused No.1 has not preferred any appeal as noted above but accused No.3 has challenged the judgment of the conviction and sentence and in turn State 7 has also called in question the sentence passed by the trial Court as inadequate.
6. Prosecution in order to bring home the guilt of the accused has examined as many as 10 witnesses PWs.1 to 10 and got marked Exs.P.1 to P.7 and also material objects as Mos.1 to 6. Though the entire case revolves around the evidence of PW.4, we will glance through the evidence of all the prosecution witness before adverting to the grounds urged by the learned counsel for the appellant and the learned Additional State Public Prosecutor for State with reference to material evidence.
7. PW.1 is the brother of the deceased Sarubai. He has only spoken about the motive against accused No.1, to the effect that the accused was harassing the deceased. PWs.2 and 3 are the panch witnesses for Ex.P.2 and P.3 the police have drawn panchanama and seized the material objects Mos.1 to 3, axe, blood stained and unstained mud from the place of incident. PW.3 has 8 supported the case and PW.2 though turned hostile initially but during the course of cross-examination has also supported the case of the prosecution. There is no much dispute so far as this particular seizure of the articles from the spot as well as drawing up of mahazar through which the prosecution wants to connect accused No.1 so far as axe is concerned. PW.4 is the star witness to the prosecution who is none other than son of the deceased Sarubai and accused No.1. He is an eyewitness to the incident and he has fully supported the case of the prosecution. The sole evidence of this witness is relied upon by the prosecution in order to bring home the guilt of the accused.
8. PW.5 Siddappa is another brother of the deceased. He has also stated about the same fact as that of PW.1. PW.6 Dr. Arati M.Kavale has conducted autopsy on the dead body of the deceased Sarubai and gave the opinion as per Ex.P.5 that, the death of the deceased was 9 due to Neurogenic shock as a result of head injury. PW.7 CPI is the Police Inspector who partially conducted investigation and PW.8 is only a formal witness who carried the FIR to the jurisdictional Magistrate. PW.9 & 10 are the Investigating Officers who completed the investigation and submitted the charge sheet.
9. Learned counsel for the appellant has strenuously contended that, the entire case of the prosecution revolves around the evidence of PW.4 who is an eyewitness to the incident and no other material is available in order to connect accused No.3 to the crime. However, if the evidence of PW.4, who is none other than son of the deceased and accused No.1, who is a child witness, his evidence has to be more meticulously examined by the Court. There are lot improvements and contradictions as compared to the statement given at the time of inquest. The inquest proceedings are marked at Ex.P.2. If the evidence of PW.4 is accepted as it is, even 10 then, there are no allegations specifically made against accused No.3 so far as abatement is concerned as well as accused No.3 catching hold of the hands of the deceased at the time when axe blow was given on the head of the deceased by accused No.1. So far as these two aspects are concerned, there is serious contradiction as per the evidence of PW.4 that he has not said so before the police with regard to instigation and with regard to catching hold of the hands of the deceased by accused No.3. If the evidence on these two aspects are disbelieved by the Court, then there is no material to connect accused No.3 to the crime.
10. Contrary to the above said submissions, learned Addl. S.P.P. submitted that, though there is some discrepancy as the said contradiction and omissions have not been proved in accordance with law, therefore, these contradictions and omissions may not be taken into consideration by the Court in order to acquit accused 11 No.3. On the other hand, he submitted that PW.4 has categorically stated about the presence of accused Nos.1, 2 and 3 and specifically stated that, accused Nos.2 and 3 have caught hold the hands and legs of the deceased so as to enable accused No.1 to assault on the head of the deceased in order to finish of the life of Sarubai. Therefore, common intention amongst all the accused persons can be gathered from the overt acts of the accused and also instigation made by them. Therefore, the trial Court has committed serious error in not convicting the accused No.3 under section 302 read with section 34 of IPC. Hence, he pleaded for dismissal of the appeal filed by accused No.3 and to allow the appeal filed by the State.
11. In the wake of the submissions made before the Court by both the learned counsel, evidence of PW.4 is only the material evidence available to the Court for 12 appreciation, in order to ascertain whether accused No.3 has committed any offences as alleged against her.
12. Now we would like to meticulously examine the evidence of PW.4 in detail. PW.4 has categorically stated in the examination-in-chief that on 03.06.2007 at about 6.30 a.m. this witness, his mother, sisters were not present. at that time accused No.2 and 3 actually were not residing together as they were residing at a distance of about 500 ft from that particular spot. After coming to the spot, it is alleged that accused Nos.2 and 3 have instigated accused No.1 to assault deceased. On receiving such information, accused No.1 assaulted on the back and legs of the deceased. After receiving those injuries Sarubai fell down and accused No.2 thereafter caught hold the legs of the deceased and accused No.3 caught hold the hands of the deceased and in that context, accused No.1 assaulted with the hind portion of the iron portion of the axe on the head of the deceased which caused severe injuries on the 13 head of the deceased due to which she succumbed to those injuries and thereafter accused threw the said axe on the spot and went away from the spot. In the course of cross-examination, it is categorically admitted by this witness that after the death of his mother, he started living with his maternal uncles and one of the maternal uncles is a doctor by profession and other two were doing agriculture and he used to reside with those uncles and they have been taking care of this child. It is also admitted that about 7 to 8 times, the child witness has come to the Court and he has specifically admitted that his uncles have actually tutored and trained him as to how he has to give his evidence before the police. He has deposed before the Court as tutored by them.
13. Be that as it may, though there are serious admissions by PW.4 that he was tutored still the Court has to examine whether this evidence is trustworthy for acceptance. It is further evident in the cross-examination 14 of this witness that accused No.1 has delivered three blows on the deceased; one was on the leg and another was on the back and one fatal blow on the head of the deceased. He further admitted that, he has not stated before the police in his statement that accused Nos.2 and 3 have actually instigated accused No.1 at paragraph No.12 of his evidence. Therefore, it was suggested at the end of the cross-examination that he is not an eye- witness to the incident, but he has deposed falsehood before the Court at the instance of his maternal uncles.
14. Now the Court has to examine whether there is an improvement so far as overt act of accused Nos.2 and 3 are concerned. It is the allegations that accused No.3 has actually caught hold the hands of the deceased at that particular point of time, though the statement of this witness has not been specifically marked but entire inquest report has been marked before the Court. In the inquest report, the statement of this witness has been 15 recorded by the Investigating Officer. It is not disputed by the prosecution with regard to drawing up of inquest mahazar as per Ex.P.2 and also recording of the statement of PW.4. During the inquest proceedings, this witness has stated in his statement that accused No.2 only caught hold the hands and legs of the deceased and accused No.3 has only instigated accused No.1 to do away with the life of the deceased. Therefore, improvement made by PW.4 is evident from the records itself. Further, added to that, in the course of cross-examination as we have noted down, so far as instigation is concerned PW.4 himself has admitted that he has not stated before the police that accused Nos.2 and 3 have instigated accused No.1 to do away with the life of the deceased. Though, these contradictions and omissions were not put to the Investigating Officer but these are admissions on the part of PW.4 made during the course of his cross-examination, that itself is the proof before the Court that he has contradicted with his earlier statement. If at all he has 16 denied any statement before the police, then only the proof of such portion ought to have been proved by putting the same to the Investigating Officer.
15. Therefore, in the above said circumstances, omissions can be gathered from the evidence itself and contradictions are admitted by the evidence of PW.4. Under the above said circumstances, in our opinion, evidence of PW.4 that, he has been residing with his maternal uncles and they have actually tutored him as to what to depose before the police and Court, perhaps, that may be the reason that these two contradictions and omissions occurred in the evidence of PW.4. Therefore, it is the fundamental basic principle of criminal jurisprudence, while appreciating the evidence of child witness, the Court should be very careful before accepting the evidence of child witness, if sufficient material is available on record that the child has been tutored or the witness making any material improvement, during the 17 course of evidence and also deposes on some imagination or information by some other person, in such an eventuality, the sole testimony of such witness cannot be relied for to record a finding of conviction of such accused persons. In this particular case, it is evident in the record that, PW.4 has himself admitted about tutoring by his maternal uncles, therefore in our opinion, the sole testimony of PW.4 should not have been utilized for to convict accused No.3. In view of the above said facts and circumstances, we do not find any reason to take a strong stand to sustain judgment of conviction and the order of sentence passed by the trial Court, so far as accused No.3 is concerned.
16. The obnoxious factor in this case is that, learned Sessions Judge sentenced accused No.3 for the offence under section 326 of IPC, we do not know from which part of the evidence, he gained that fact that accused No.3 has committed any offence under Section 18 326 of IPC. Absolutely, there was no fracture on the back or leg of the deceased, even considering that on the instigation of accused No.3, accused No.1 has assaulted on the back, hands and legs of the deceased. The said observation made by the learned Sessions Judge is absolutely without any basis. Under the above said circumstances, we proceed to pass the following:
ORDER Appeal preferred by accused No.3 in Criminal Appeal No.3632/2011 is hereby allowed. Consequently judgment of conviction and sentence passed by the trial Court against accused No.3 (appellant) for the offences under section 326 read with section 111 of IPC is hereby setaside. Accused No.3 is hereby acquitted for the said offences and bail bond and surety bond executed by accused No.3, at the time of suspension of sentence are hereby cancelled. If accused No.3 has deposited any fine 19 amount, the same shall be refunded on proper identification and acknowledgement.
Appeal preferred by the State in Criminal Appeal No.3688/2011 is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE VNR Ct:RRJ