Karnataka High Court
Uppaladoddi Hulugappa S/O. Sunkanna vs The State Of Karnataka on 10 April, 2017
Bench: B.S Patil, K.Somashekar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10th DAY OF APRIL, 2017
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
AND
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
Criminal Appeal No. 2809/2013
A/w
Criminal Appeal No. 100075/2014
In Crl. A. No. 2809/2013
BETWEEN:
1. Uppaladoddi Hulugappa
S/o Sunkanna
Age: 27 years, R/o 15th Ward
2. Uppaladoddi Pandu
S/o Sunkanna
Age: 22 years,
3. Uppaladoddi Sunkanna
S/o Pamanna
Age: 47 years, (Correct Age 60 years)
4. Uppaladoddi Mallamma
W/o Dyavanna
Age: 24 years,
All are R/o of Tekkalakote,
Siruguppa Tq., Ballary Dist.
.. Appellants
(BY SRI J. BASAVARAJ, ADV.)
2
AND
The State of Karnataka
Represented by its State Public Prosecutor
High Court of Karnataka, Dharwad
... Respondent
(BY SRI RAJA RAGHAVENDRA NAIK, SPP.)
This appeal is filed under Section 374(2) of Cr.P.C. seeking to
call for the records passed by the sessions judge, Bellary, in
S.C.No.71/2011, peruse the same, allow this appeal, set aside the
judgment and order of conviction dated 05.10.2013 and sentence
dated 07.10.2013 under Section 304-II of IPC and set the appellants
at liberty.
***
In Crl. A. No. 100075/2014
BETWEEN:
The State by Circle Inspector
of Police, Siruguppa Taluk
Bellary District
.. Appellant
(BY SRI RAJA RAGHAVENDRA NAIK, SPP.)
AND
1. Uppaladoddi Hulugappa S/o Sunkanna
Age: 27 years, R/o 1st Ward, Tekkalakote
2. Uppaladoddi Pandu S/o Sunkanna
Age: 22 years, R/o Tekkalakote
3. Uppaladoddi Sunkanna S/o Pamanna
Age: 47 years, R/o Tekkalakote
4. Uppaladoddi Mallamma W/o Dyavanna
Age: 24 years, R/o Tekkalakote,
... Respondents
(BY SRI J. BASAVARAJ, ADV.)
3
This appeal is filed under Section 378(1) & (3) of Cr.P.C.
seeking to grant special leave to appeal against the judgment and
order of acquittal dated 05.10.2013 passed by the Prl. Sessions
Judge, Bellary, in S.C.No.71/2011 and be set aside the judgment
and order of acquittal and convict the accused for the offences
punishable under Section 302 of IPC.
***
THESE APPEALS ARE COMING ON FOR HEARING THIS DAY,
B.S.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are directed against the judgment dated 5th October 2013 passed by the learned Principal Sessions Judge, Bellary in Sessions case No.71/2011. By the said judgment, the Court below has found accused Nos.1 to 4 guilty of offence punishable under Section 304 Part II and has convicted accused Nos.1 to 3 to undergo rigorous imprisonment for two years and to pay fine of Rs.10,000/- each and in default to undergo rigorous imprisonment for three more months. Accused No.4 who is a lady has been ordered to be released under Section 4 of the Probation of Offenders Act subject to execution of a bond for Rs.50,000/- with a solvent surety for keeping 4 good conduct for a period of three years as contemplated under Section 4 of the said Act.
2. Aggrieved by the sentence awarded by the Court below taking recourse to the provisions of Section 304 Part II IPC, the State has preferred Criminal Appeal No.100075/14 contending inter-alia that accused ought to have been convicted for the offence punishable under Section 302 of IPC and not under Section 304 Part II. Accused No.1 to 4 have filed Crl.A.No.2809/13 challenging their conviction.
3. As both these appeals arise out of common judgment, both of them have been heard together and are being disposed of by this common judgment.
4. Facts involved in the case briefly stated are that on the intervening night of 7.8.2010 and 8.8.2010 at about 12.30 hours, accused Nos.1 to 3 and certain others were playing a game of breaking coconut on the eve of 5 Nagarapanchami festival. At that time deceased Halur Sunkanna complaining about the nuisance created by the accused came down and advised accused No.3 not to continue with the disturbance and get back home. Enraged by the same accused No1.-Uppaladoddi Hulugappa, who is none other than the son of accused No.3-Uppaladoddi Sunkanna slapped Halur Sunkanna on his cheek. The deceased fell down and thereafter accused Nos.2 and 3 kicked on his abdomen and stamped on him. Complainant-Haluru Hanumanthappa tried to pacify the accused, but accused No.4 abused him and held him by his hair. At that time, other villagers came to their rescue and pacified the quarrelling parties. The victim-Halur Sunkanna could not get up; he was shifted to a hospital at Tekkalakote and as no doctors were available there he was shifted to Government Hospital Siruguppa. On examination, the doctor declared him brought dead. A case in Crime No.79/10 was registered by Tekkalakote Police against the accused-appellants in Crl.A.No.2809/13 6 under Section 594, 323, 302 read with Section 34 of IPC. After investigation, the Investigating Officer filed charge sheet. The learned Sessions Judge framed the charges. Accused pleaded not guilty
5. Before the learned Sessions Judge, prosecution has examined in all 17 witnesses as P.Ws.1 to 17 and Exs.P1 to 11 were marked. For the defense no evidence was adduced. However, Ex.D11-the relevant portion of statement of P.W.10 was got marked by the defendant.
6. After perusing the entire materials on record, the learned Sessions Judge framed the following points for consideration;
1. Whether the prosecution proves on 8.8.2010 at about 1.00 am or there about Halur Sunkanna husband of CW.10 died due to internal injuries suffered by him? 7
2. Whether the prosecution further proves beyond reasonable doubt that on the above said date and time in front of Huligemma temple of Tekkalakote town in the Electric light, in furtherance of their common intention accused no.1 to 4 intentionally insulted deceased Halur Sunkanna husband of CW.10 knowing fully well that it will cause him to break the public peace and thereby accused persons committed offence punishable under section 504 r/w 34 of IPC?
3. Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place accused No.1 to 4 in furtherance of their common intention, accused No.1 assaulted Halur Sunkanna with hands on the left cheek and kicked on the abdomen of Halur Sunkanna and when he fell down, accused No.2 and 3 stamped the fallen Halur Sunkanna and when complainant Halur Hanumantha came to the rescue of fallen Halur Sunkanna, accused No.4 8 dragged Hanumantha by pulling his hair then she also dragged Sunkanna by pulling his hair and thereby committed offence punishable under section 323 r/w 34 of IPC?
4. Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place accused No.1 to 4 in furtherance of their common intention, internationally caused death murder of Haluru Sunkanna and thereby committed an offence punishable under section 302 r/w 34 of IPC?
5. What order?
7. Evidence of Dr. B.M.Narendra, Medical Officer, Siruguppa General Hospital, who has been examined as PW.8, reveals that on examination of the dead body of Halur Sunkanna, he found that there were no external injuries on his body but found food particles in the mouth and nasals. He also found no other injuries on other parts of the body. However, according to him the anterior wall 9 of the stomach had been raptured and small and large intestines were found normal and liver was intact. The doctor also found that there was small tear seen in anterior part of spleen along with blood clots. In his opinion, the death was due to fatal injuries to the abdominal organs like stomach and spleen. The post- mortem report was marked as Ex.P5. In his cross- examination, it has been elicited that as per the Medical jurisprudence a healthy normal spleen may rupture from minimal trauma occasionally and that he had not measured the length, width and the weight of the spleen. It has also been elicited in his evidence that injury to abdomen of the deceased could be caused if a person with full stomach was hit hard with hands or feet over the abdomen.
8. Having due regard to the evidence of doctor, the learned Sessions Judge has come to the conclusion that the prosecution was successful in establishing that death 10 of Halur Sunkanna was due to internal injury suffered by him particularly in the abdomen and spleen. Insofar as guilt of the accused, evidence on record would show that PW.1, Halur Hanumantha was the complainant; he is none other than son of the younger brother of deceased. He has stated that on 01.08.2012 around 12.30 a.m., near Huligemmana gudi on the Nagara Amavase day there was a galata as the accused were playing game of breaking the coconut. At that time, his senior uncle Halur Sunkanna questioned the accused regarding the disturbance caused by them advising accused No.3, Uppaladoddi Sunkanna to get back home and stop the disturbance. At that stage, the deceased was assaulted on his cheek by accused No.1 and accused Nos.2 and 3 stamped on the deceased who had fallen on the ground, accused No.4 tried to prevent the complainant intervening to rescue the victim by holding the complainant's hair and as a result of that the victim could not get up and was shifted to the hospital. 11
9. There are other eyewitnesses apart from the complainant who have been examined by the prosecution. They are PWs.1, 3, 4, 9, 10 and 11. All these witnesses have stated categorically about the incident and the part played by each of the accused. In the cross-examination nothing is elicited to discard these witnesses.
10. It is vehemently contended by the learned counsel for the appellants, by taking us through evidence of each of the witnesses that there has been material inconsistency with regard to the time of the incident, the actual role-played by each of the accused and the existence of light at the spot on the date of the incident. In this regard, learned counsel Sri Basavaraj has invited our interference in the findings recorded by the learned Sessions Judge regarding the involvement of the accused and proof of the guilt of accused beyond reasonable doubt. 12
11. We have examined the entire materials on record in the light of the submissions of Sri Basavaraj, learned counsel for the accused and the learned Public Prosecutor. The common points that arise for our consideration in both these appeals are as under:
(i) Whether the learned Sessions Judge has committed any illegality in convicting the accused for the offence under Section 304 Part II and sentencing accused 1 to 3 to undergo imprisonment for a period of two years by extending the benefit of Section 4 of the Probation of Offenders' Act in so far as accused No.4 was concerned?
(ii) Whether the prosecution has established that on 08.08.2010 at about 1 a.m. in front of Hulibemma Temple of Tekkalakote town, accused 1 to 4 in furtherence of their common intention, intentionally caused the death of Halur Sunkanna and thereby committed offence punishable under Section 302 read with Section 34 of IPC?
(iii) What order?
13As points 1 and 2 are interconnected, they are taken up together for consideration.
12. As rightly held by the Court below evidence of the doctor clearly discloses that deceased died on account of internal injury suffered to the anterior wall of the stomach and the spleen. All the eyewitnesses have categorically stated that accused Nos.1 to 3 played distinct part, in that accused No.1 slapped the deceased on his cheek, which made the deceased to fall down and accused Nos.2 and 3 stamped on his stomach. This is the reason, why deceased could not get up and was shifted to the hospital. It is true, no weapon was used by the accused and there was no pre-meditated act intended to cause serious injury to the deceased let alone with an intention to kill him. It has to be noted that for this reason, the learned Sessions Judge has rightly found that no case had been made out by the prosecution for convicting the accused under Section 302 of IPC.
14
13. The contention of the learned counsel for the appellants is that there has been inconsistency with regard to time of the incident. He points out that complaint, Ex.P1 shows that incident occurred on 08.08.2010 around 12.10 a.m. but in his evidence he has stated that incident took place at 12.30 a.m. Whereas the doctor in his evidence states that the dead body was brought to Siruguppa Hospital at 12.10 a.m. He also points out that PW.9 in his cross-examination has stated that disturbance took place around 10.00 p.m. on 07.08.2010. It is also contended that PW.10 has stated in his evidence that incident took place around 10.30 p.m. Similarly, evidence of PW.11 also showed that incident took place around 10.00 p.m. He, therefore, contends that this material discrepancy has been ignored by the trial Court.
14. The incident has taken place in the village and the witnesses are all villagers. Occurrence of the incident 15 has been proved and corroborated by all the witnesses. There are minor variations in the testimony. This cannot go to the root of the matter so as to disbelieve the version of these witnesses. We do not find much substance in the contention of the learned counsel for the appellants. Similarly, it is pointed out by the learned counsel for the appellants that PWs.4 and 9 have stated that there was darkness and it was an Amavase day; if that was so, how they were able to witness the incident and depose regarding the role played by each of the accused. He, therefore, submits that accused have been falsely implicated due to previous enmity.
15. We are unable to appreciate this contention of the appellant as well, because, though it was an Amavase day, the fact that they were playing the game of breaking the coconut is not in dispute. If there was darkness, question of accused playing the game of breaking the coconut would not arise. In addition, PW.7, one 16 C.K.Harikrishna, Engineer (GESCOM) Gulbarga Electric Supply Company Limited, has been examined. He has identified his report Ex.P4, wherein it is stated that there was no disturbance of electrical supply to the Tekkalakote Town on the night of the incident. Merely because he did not produce the log book maintained in respect of the power supply, it cannot be said that he was deposing falsely.
16. It is next contended by Sri Basavaraj, learned counsel that as per the evidence of doctor, elicited in the cross examination, if somebody stamps on a person fallen on the ground, he would suffer abrasions but, very strangely, in the instant case, no such injuries and abrasions are found on the body of deceased and therefore theory set up by the prosecution that deceased was stamped by accused Nos.2 and 3 resulting in internal injuries to the stomach and spleen of the deceased could not be believed.
17
17. We have examined the evidence of the doctor and the evidence of the witnesses in greater detail and find that all the eyewitnesses have consistently stated that accused Nos.2 and 3 stamped upon the deceased, after he fell down having received a slap from accused No.1. It is not necessary that if one is stamped upon on any part of the body the victim has to suffer injuries on the body. It all depends on the aggressive nature of the act. Indeed, having due regard to the fact that conduct of the accused was not gruesome the Court below has given the benefit to them and accused have not been convicted for the offence punishable under Section 302 of IPC. If it was such an aggressive act of stamping and dancing on the body of the fallen victim, then it would not come under the provisions of Section 304 part II, but would land into Section 302 IPC resulting in murder. Therefore, being conscious of all these facts and after carefully appreciating the entire evidence on record, we are of the view that the incident 18 and the role of the accused have been proved beyond reasonable doubt. It has resulted in unfortunate death of the victim, which was unintended by the accused.
18. The State Public Prosecutor however very vehemently contended that two of the accused stamped on the stomach of the deceased which amply demonstrates that they were aware that their act would cause injuries to the deceased which would result in his death and therefore the learned Sessions Judge was in error in acquitting the accused for the charge of murder. We are afraid, this contention of the learned State Public Prosecutor cannot be accepted. As rightly held by the Court below, even as per the prosecution case, after accused No.1 slapped the deceased on his cheek, he fell down and accused Nos.2 and 3 stamped on him. None of them were armed with any weapon. They had no knowledge of the consequence of their action nor had they any intention to kill the deceased. There is absolutely no 19 motive made out or established by the prosecution as to why the accused should kill the deceased. This is a pure and simple case of an altercation leading to accidental death due to an unfortunate blow on a vital part of the stomach occurring at the spur of moment. Therefore, contention of the learned State Public Prosecutor that the case of murder had been made out and therefore the accused ought to be punished for the offence under Section 302 of IPC cannot be accepted. The appeal filed by the State is liable to be dismissed. Accordingly, the same is dismissed. Points 1 and 2 are answered in the negative.
19. In the light of the findings that we have recorded, we are of the view that accused Nos.1 to 3 cannot be extended the benefit of Section 4 of the Probation of Offenders Act on par with accused No.4. It is for the said reason, we are not inclined to accept the suggestion made by Sri Basavaraj, learned counsel that 20 compensation as contemplated under Section 5 of the Probation of Offenders Act may be awarded to the family members of the deceased. Such a benefit in the facts and circumstances of this case cannot be extended to accused Nos.1 to 3.
20. Insofar as Criminal Appeal No.2809/2013 filed by the appellant/accused Nos.1 to 4, as already pointed out by us, evidence of the doctor, the post mortem report, evidence of eyewitnesses PWs.1, 3, 4, 9, 10 and 11 makes it abundantly clear that the incident had indeed taken place and in the said incident accused Nos.1 slapped the deceased, accused Nos.2 and 3 stamped on him. Hence, the learned Sessions Judge has rightly come to the conclusion that case under Section 304 part II had been made out and accordingly accused Nos.1 to 3 were liable to be convicted.
21. The learned Sessions Judge has also rightly exercised his discretion in awarding sentence of rigorous 21 imprisonment for a period of two years keeping in mind the role played by the accused resulting in an unfortunate consequence of the death of deceased Halur Sunkanna.
22. So far as accused No.4 is concerned, she is lady. The overt act attributed to her was only to hold the complainant by his hair when the complainant was about to intercept the accused and separate the victim and the accused from quarrelling with each other. She had not in any manner directly contributed to the assault made by the accused Nos.1 to 3. Hence, the learned Sessions Judge has rightly invoked the provision of Section 4 of Probation of Offenders Act and has extended the benefit to her. In this regard also, we are in agreement with the reasons assigned and the conclusion reached by the learned Sessions Judge as regards accused No.4.
Hence, we do not find any merit in the criminal appeal No.2809/2013 filed by the accused/appellants Nos.1 to 4. Therefore, both the appeals do not warrant 22 interference by this Court in exercise of Appellate jurisdiction. Hence, both the appeals are dismissed.
Sd/-
JUDGE Sd/-
JUDGE alb/msr