Karnataka High Court
Ganganna S/O Ullarthi Bharamanna vs State Of Karnataka on 25 June, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JUNE 2020
PRESENT
R
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL NO.100063/2017
BETWEEN:
GANGANNA S/O ULLARTHI BHARAMANNA
AGE: 37 YEARS, OCC: LABOURER,
R/O THAYAKANAHALLI
TQ. KUDLIGI, DIST. BALLARI
KARNATAKA.
... APPELLANT
(BY SRI. GOURISHANKAR MOT, ADVOCATE)
AND:
STATE OF KARNATAKA
REP. BY ITS PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP)
---
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
(2) OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND SET
ASIDE THE JUDGEMENT OF CONVICTION DATED 17.01.2017
AND ORDER OF SENTENCE DATED 20.01.2017 PASSED BY THE
HON'BLE III ADDITIONAL DISTRICT AND SESSION JUDGE,
BALLARI (SITTING AT HOSAPETE) AGAINST THE APPELLANT, IN
SESSIONS CASE NO. 5041 OF 2014, FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC AND ACQUIT THE
APPELLANT.
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THIS APPEAL COMING ON FOR HEARING THIS DAY,
B.A.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/accused challenging the legality and correctness of the judgment of conviction dated 17.01.2017 and order of sentence dated 20.01.2017 passed by the III Addl. District and Sessions Judge, Ballari (sitting at Hosapete) in S.C.No.5041/2014.
2. We have heard the learned counsel Sri. Gourishankar Mot for the appellant/accused and the learned Addl. SPP Sri.V. M. Banakar.
3. The complainant and the accused were husband and wife. Out of their matrimonial relation they have begotten two daughters and a son. It is alleged that for some time the complainant and the accused stayed in Neralagunte village and after three years she came to her parental house at Thayakanahalli and was staying along with her :3: children. It is the further case of the prosecution that the accused used to go out to attend his duties and he was suspecting the fidelity of the complainant and often used to pick up quarrel with her. It is further alleged that he always used to tell that the deceased was not born to him. In that light, on 11.02.2013 at about 10.00 am, accused by suspecting the fidelity of the complainant started quarrelling with her and abused her in filthy language and tried to assault her. When the deceased son came to the rescue of complainant, accused strangulated the deceased by squeezing his neck and also assaulted the complainant and his daughter Rekha when they came to rescue the deceased and immediately the relatives and neighbors came and they noticed that the deceased has breathed his last. On the basis of the complaint - Ex.P1, a case has been registered in Crime No.13/2013. Thereafter, after investigation charge sheet has been filed. The Committal Court committed :4: the case to the Sessions Court and the Sessions Court secured the presence of the accused and charges were framed after hearing. Accused pleaded not guilty and he claims to be tried and as such, trial was fixed.
4. To establish the case of the prosecution, the prosecution got examined 21 witnesses and got marked 16 documents and two material objects. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. by putting incriminating materials as against him. He denied the same and has not led any evidence nor got marked any documents. After hearing the arguments, the impugned judgment came to be passed.
5. It is the submission of the learned counsel for the appellant/accused that the judgment of conviction and order of sentence passed by the trial Court is contrary to law and materials placed on record. It is his further submission that, as per the case of the prosecution, the alleged incident has taken :5: place on 11.02.2013 at about 10.00 am, but Ex.P7 - inquest mahazer reveals that the said mahazer has been drawn prior to the alleged incident at about 7.30 am. That itself is going to establish the fact that there is concoction and creation and inclusion of the false evidence in the case of the prosecution. It is his further submission that PW3 - panch witness, who is none other than the neighbor of the house of the accused, has clearly admitted in his cross-examination that the daughter of the complainant Rekha had been to the school on the date of the alleged incident and she was not present there. When she was not present, she cannot be considered to be an eyewitness to the alleged incident and her evidence is not going to substantiate the case of the prosecution. It is his further submission that the evidence which has been produced clearly goes to show that the complainant PW1 had illicit relationship with PW11 and the same has been witnessed by the deceased and :6: under the apprehension that the deceased may reveal about her illicit relationship to the accused, it is the complainant who strangulated the deceased and then the body was placed in the hall and it was made to appear that it is the accused who has committed the alleged offence. This fact has not been properly appreciated by the trial Court. It is his further submission that, no independent witnesses have been examined so as to substantiate the case. Even the statement of the witness - PW12 has been recorded by the police after nine days of the incident. It is his further submission that all the witnesses are somehow related in one or other manner to the complainant and in that light, their testimony has to be scrutinized with caution and care. Alternatively, it is his submission that the alleged incident, if at all has taken place, it has been taken place in a spur of moment without there being any motive, preparation or intention. Under these circumstances, the accused may be given :7: the benefit of Section 304 Part-II of IPC and in stead of convicting the accused under Section 302 of the IPC, the accused be convicted under the said Section and set off may be given for the period which he has already undergone. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence.
6. Per contra, learned Addl. SPP vehemently argued and submitted that there are eyewitnesses to the incident. PW1 is none other than the wife of the accused and PW12 is the daughter of the accused. The accused has also made a confessional statement before PW10 for having committed the alleged offence. All these materials clearly goes to show that it is the accused who was suspecting the fidelity of the complainant and was also telling that the deceased was not born to him and at the time of quarrel, when the deceased came to the rescue of the complainant, the accused strangulated him and caused his death. :8: It is his further submission that, during the course of cross-examination nothing has been elicited so as to discard the evidence of these witnesses. It is his further submission that, whatever the contradictions and lapses which have been pointed out by the learned counsel for the appellant, they are not going to the root of the case and the minor contradictions and omissions are to be ignored while considering the case of the prosecution. It is his further submission that, if the conduct of the accused is seen, he has taken a false defence and hence no leniency has to be given to the accused. It is his further submission that the appellant/accused has not made out any case or grounds to come to the conclusion that the alleged incident has taken place in a spur of moment and that he has lost or deprived of his mental condition and in that light the alleged incident has taken place. Under these circumstances, the judgment of the trial Court :9: deserves to be confirmed. On these grounds, he prayed to dismiss the appeal.
7. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the trial Court records. The prosecution in order to establish the fact that the deceased died homicidal death, has got examined PWs. 2 and 3, the inquest mahazer panchas to Ex.P7 and also got examined the doctor - PW19 who has conducted autopsy over the body of the deceased and has issued the post mortem report as per Ex.P14. PWs. 2 and 3 in their evidence have deposed with regard to conducting of the inquest mahazer and they have also deposed that they have gone to the hospital and there they have seen the dead body and mahazer has been drawn and they came to know that the accused has committed the murder by squeezing the neck of the deceased. On perusal of the evidence of PW19, the : 10 : doctor who has conducted the autopsy over the body of the deceased, he has deposed that he has noticed the abrasion on mid part of forehead, abrasion on left side of forehead, linear abrasion on left side of face near ear, linear abrasion on left side of face below eye, contused abrasion at middle of neck situated at midline of neck just above thyroid cartilage, contused abrasion at left sterno-deodomatoid region and bruise over right scapulae area. He opined that the death is due to asphyxia as a result of the manual throttling. By going through the evidence of these witnesses it clearly establishes the fact that the deceased died homicidal death.
8. In order to prove the case of the prosecution that the accused was suspecting the fidelity of the complainant and in that light he used to quarrel and on the alleged date of incident the accused started quarrelling and assaulting the complainant and when the deceased came to the : 11 : rescue of complainant, he assaulted the deceased as well as he throttled him. PW1 - complainant has also reiterated the contents of the complaint and with regard suspecting her fidelity. So also PW4 - the sister of the complainant and PWs.5, 10, 11 and 13 have deposed in this behalf. Even as could be seen from the cross-examination of the accused it has not been disputed and even it has been suggested to many of the witnesses that the complainant PW1 had illicit relationship with PW11 and in that light the prosecution has clearly established the fact that the accused was suspecting the fidelity of the complainant and galata used to take place in that regard and PW1 and 12 are the eyewitnesses. They have categorically deposed that the accused on the date of the alleged incident started quarreling with the complainant and abused her with filthy language and told that she has kept somebody and also told that the deceased had not born to him and when the deceased came to the : 12 : rescue of complainant, he squeezed the neck of the deceased and by the time the relatives and neighbors came there on hearing their hue and cry, the deceased had breathed his last and PWs.11, 10 and 9, who also came there scolded the accused and sent him out. During the course of cross-examination nothing has been elicited to discard their evidence.
9. During the course of arguments the learned counsel for the appellant/accused by drawing our attention to the evidence of PW3 contended that he has admitted during the course of cross-examination that PW12 had been to school and she was not present at the place of incident. Even if the evidence of PW12 is ignored for the time being by holding that she was not present, but the evidence of PW1, the wife of the accused is consistent and even it has not been shaken in any manner during the cross- examination so as to discard her evidence. If the evidence of PW1 is accepted with due care and : 13 : caution, it clearly establishes the fact that the accused by suspecting the fidelity of the complainant, quarreled with her and at that time when the deceased came for her rescue, he squeezed his neck and caused the death. Insofar as suspecting of the fidelity of the complainant, the prosecution has clearly established its case and the evidence of PW1 corroborates with the contention of the prosecution. In that light, the prosecution has established its case beyond all reasonable doubt.
10. During the course of arguments, learned counsel for the appellant/accused brought some discrepancies in the evidence of the witnesses and the inquest mahazer panchas to our notice. We are conscious of the fact that there are some defects in investigation. It is trite of law that mere lapses on the part of the Investigating Officer itself cannot be a ground for giving the benefit to the accused. If that is considered to be the basis, then every criminal case : 14 : will depend upon the will and design of the Investigating Officer. The Court has to independently deal with the case and should arrive at just conclusion beyond reasonable doubt basing on the evidence which has been placed on record. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Krishnegowda and Others Vs. State of Karnataka reported in (2017) 13 SCC 98. Para 38 of the said judgment reads as under:
"38. It is settled law that mere lapses on the part of the Investigating Officer itself cannot be a ground for acquitting the accused. If that is the basis, then every criminal case will depend upon the will and design of the investigating officer. The courts have to independently deal with the case and should arrive at a just conclusion beyond reasonable doubt basing on the evidence on record."
11. Keeping in view the ratio laid down in the above decision and on perusal of the evidence and material placed on record, the evidence produced before the Court is cogent and trustworthy and : 15 : whatever the contradictions which have been brought, will not go to the root of the case. As rightly pointed out by the learned Addl. SPP there are minor contradictions and the same are liable to be ignored.
12. Taking into consideration the above said facts and circumstances, we are of the considered opinion that there is ample material to connect the accused to the alleged crime.
13. With regard to the contention of the learned counsel for the appellant/accused that the said act has taken place in a spur of moment when the accused and the complainant were quarreling and the accused/appellant was not having any intention to cause the death of the deceased and no preparation or motive is existing in this behalf, we have carefully and cautiously gone through the submission and we have also scrutinized the evidence which has been produced before the trial Court.
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14. In order to consider the case under Sections 304 Part-I and II of IPC, the case has to be made out under exceptions No.1 or 4 of Section 300 of IPC. For the purpose of brevity we quote Section 300 of IPC and exceptions (1) and (4) which reads as under:
" 300. Murder -Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly,--If its done with the intention of causing such bodily injury as the offender likely to cause the death of the person to whom the harm cause, or--
Thirdly. --If its done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for : 17 : incurring the risk of causing death or such injury as aforesaid.
Exception 1.- When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or cause the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
Firstly.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of act.
Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx : 18 : Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault."
15. On going through Exception 1 of Section 300 of IPC, culpable homicide is not murder if the offender while doing the act deprived of the power of self control, by grave and sudden provocation. In order to bring the case under the said exception accused has to show that he is deprived of the power of self control by grave and sudden provocation which is caused by the person whose death has been caused.
16. Keeping in view the said proposition of law and on going through the evidence and material placed on record, though it has been suggested to the : 19 : complainant - PW1 that the deceased has seen the illicit act of the complainant and PW11 and he was about to tell the same to the accused and in order to avoid that, it is the complainant who has squeezed the neck of the deceased and thereafter the quarrel was so eminent and offending that while the tinny act deprived the power of self-control and by grave and sudden provocation the act has taken place, no material has been placed on record in this behalf. In the absence of any such material, the contention of the learned counsel for the appellant/accused cannot be accepted and it is not having any force.
17. In the light of the above discussion held by us, we are of the considered opinion that the appellant/accused has not made out a ground so as to interfere with the judgment of the trial Court. We have carefully and cautiously gone through the judgment of the trial Court. The trial Court after considering all the facts, evidence and law has come : 20 : to a right conclusion and has rightly convicted the appellant/accused. It does not require any interference at the hands of this Court. The same deserves to be confirmed.
The appeal is dismissed as devoid of merits. We appreciate the able assistance given by the learned counsel for the appellant and the Addl. SPP.
Sd/-
JUDGE Sd/-
JUDGE gab