Karnataka High Court
Sivananda vs State Of Karnataka By Talagattapura Ps on 2 July, 2008
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
CRL.A.NCL1204I200S
IN THE HIGH COURT OF' KARNATAKA AT BANGA1,0'E'E._V
DATED THIS THE 02»-:1 DAY OF JULY 2ja'6--8..' A' %
PRESENT
THE HON'BLE MR. JUSTICE ;:E.sE'EEEPm.'R ~15§A{; 'V,
AND .. V. _ .
THE HON'BLE MR.JUsTiEE'PA.s.PAciiE.EPU'EEW CRIMINAL A;PPEAL<N0j; 120412005. {C1 BETWEEN -
SIVANANDA ' S /0 VENKATARAMANAPPA R/ATNO.85,HARE'CO.'1QNY, SARABANEDE PEEYE "V * ..
BEHIND £mNAEH}xNEEEI"TEMP£E.,__ -- ' BANGALORE.' _ ' '. ...APPELLAN'I' {APPELLANT 1's._uNEE1§G_oiNG SENTENCE OF IMPRISONMEMT AT BANGALORE' CENTRAL JAIL)"'
- ._{BY E Eg;REEij}es....E.A..£su, ADV.) STATE 0?' KA'ENAir5AKA BY ';'ALAGAT'rAP_£.:I2A POLICE STATION. RESPONIDENT
--V (BY sEm.':zEA\}Am SINGH, SPP-H) ' .. ,_THIVS'.CRIMINAL APPEAL IS FILED U/S 374(2) CR.?.C BY THE = . '~ADVOCATE FOR THE APPELLANT/ACCUSED AGAINST THE JUDGMENT " _ m*.2--;.-.4=-05 PASSED BY THE DIST. & S.J., 85 79.0., F'I'C-V,B'LORE (R) DIST, , -_.--B'LORE IN S.C.N0.253/03-CONVICTING THE A??ELLAN'I'-«ACCUSED FOR P _ THE OFFENCE F/U/S 302 OF IPC AND SENTENCING HIM TO UNDERGO 'IMPRISGNMEPIP FOR LIFE AND TO PAY FINE or RS.10,000/-, LE. '90 UNDERGO IMPRISONMENT FOR 2 YEARS.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, TH§S DAY, PACHHAPURE. J., DELIVERED THE FOLLOWING:
CRL. A. 910.1204/2005 JUDGENT The appellant has chaficzaged sentence for the ofience under by the Fast Track Court, Ruzéz ygisnjce
2. Sans unnecessary version unfolded during the trial Venkatesl; ._ 1) an: brothers and the Yeliamma (PW.11).
The clecggééci P'W.1 and cw.1o had thme dssgtltefs' {PW.3) is one of the daughters is the.'-metfiei of the accused. Puttamma (PWK4) as thejof. zVenxkéa'tesIi (1=>w.1) and KuI}a1a' 13 (Pw.14) is the (PW .9). They were residing in a of the deceased Thimmaiah. Kariyappa
10)~~ owner of adjoining land and neighbour of the The land owned by the deceased, bearing Survey No. 175 " Vmeasuring 4 acres was situate withm the limits of Gottigchalh and was standing in the name of the deceased
91. CRL. A. 210.1204] 2005 PW.1 had put up a shed and 311.3351 dug a borcwcll and tiieajland was looked after by his pamnts, i.e., the Yellarama (PW.11). CW. 10 Chazmagiri was the said land and after the Ugadi fcsiiiixdi;-é.I"ez23j1i','.*:r when Mtmiyamma (PW.3) had goaia die u parents alongwith .w-iféfluidij, thed' deceased had given some regard, on the next day, _the: house of the deceased and as to why he had entértalna ' 'ed --- {PW.3) and gave the food gram' s. He had Ycilamma (PW. 1 1) fimn the shcd.,._§!L}atr:r, hé qfiiax-mlilcd with Muniyamma (PW.3) and in V. was a complaint to Banashankari Police, who and all the concerned and had advised V V' _ thezIi"':1otv--__th qdarml and to be peaceful. AA 6.4.2003, Lakshmamma (PW.9) had met .___"'d'."P\/liiniyamzna (PWK3) near the Banashankari Temple and had '4 her to look afitrr the deceased as there were no persons to take his care and thcrefom, on her mqucst, Muniyamma (PW.3} had sent her son (the accused) to look after the >[_ CR1... A. N0. 1204/2005 deceased and later, Venkatesh (P'W.1) learnt that the accused having gone to the land of the deceased had quarrelled and set fire to the shed and had ran away. The Head Talaghattapura Police Station, (PW5) _ message about the death of the deceased and .. visited the scene of occurrence and (PWK1), who was present there suhmittedthe e ailegh g that the accused threateiied .9) and set fin: to the shed as the quarrel in the family at the instance of the 'deceased dies, there will not be any pmbleinidnt complaint filed by him on these facts}§zA.é:.'s Head Constable (PWZ5), who Ieturned Station and registered Crime No.98] 2003 for the ofl'efi?;e.3 302 of IPC. He sent the complaint L (Ex. M) and the FIR to the Magistrate and on the arrival of the to the spot, the mahazar (Ex.P.2) was held by the presence of PWs.2 and 3. He seized the ash and the
-.h..11.r§nt wooden pieces (M032 and 3) and found that the dead ~ dbody had turned blackish due to the burns. He also heid the A CRL. A. NO. 1204/2005 inquest (Ex.P.6) in the pzesence of PWs.8 and 10 and sent the dead body for postmortem examination to Victoria Hospital. He recorded the statements of the Witnesses and on thejuof the accused on 8.4.2003 recorded the voiuntgiiy Ex.P.8. The accused volunteered to_.pzcd1;ce.'_'the led the Police and the attesting to a pkace and from the bush the thcdknife' V dd (MOI), which was seized He I seemed the other xeievant docume;fite'Vdendcv5.on the investigation, filed the cha1'ges3neet;«. V d V' " Dluing' the prosecution led the evidence of got marked Exs.P.1 to R8 and MGs.1 to 3. The 'ejtateitient the accused was recorded under -Section 313 d _ Cr.P{€1. He' taken the defence of total denial and has not led " " 'T evidence in his defence. On appreciation of the matefial on Trial Court convicted the appellant for the ofience Section 302 {PC and ordered to undergo imprisonment
-. for life and to pay the fine. Aggieved by the conviction and sentence, the accused has approached this Court in appeal. 54 CRL. A. NO. 1204/3905 .5. 'l
4. We have heard the learned epunsel' idx' " . and also the State Public Prosecuto1;..__ The fof our consideration are: V l M l V l (1) Whether the judgment orderllof eofiviefjon of the appe]1anis~..1_'or fhelpéfileizee-.under Sieefion 302 EPC is illegel -.
(2) What ofiiex?
5. It __.is of" lessened counsel for the appellant" "is lagainst the appellant for the oiferlee iuldezf and that as the incident has taken placelir:_Vei:11e 51' has been put on the appellant . fat the of "F'W_s_._9v and 14. It is also his contention that Vfptiaelrest Vthevlfifiitnesses have turned hostile to the prosecution al:d};ne:ero:s:;,--: that the conviction of the appellant 'is xspexverse. The State Public Pmsecutor submits l l V' 'tlizatl as incident of assault on the deceased by the accused .l.ele'.-vveslwijmessed by Lakshma111ma(PW.9)and Kullaiah (Pw.14), T " are persons, who do not have any adverse interest against U the appellant] accused and that the Trial Court was justified in >4 CRL. A. NO.1204/ 2005 conviscting the appellant on the basis of their evidence. He submits that there are no yvounds to wamant the interfeiezioe.
6. As the body of the deceased was except that on the head, theIe:"ifias« . 31 measming 3 ems. x 22 cms.
on the back of the head The postmortem report (Ex. i'L_:thé'tc,_the' tests of; the body was completely charred Doctor is of the opinion i burns of high degree and as storage, he was not able to gve the The opines that the death was due to V' iriinhseqgent bums sustained. The perusal of the it Ifloctor (PWXY), the postmortem report (Ex. 13.5) in_qiie§s_ti::{Ex.P.6) are suficiezit to anive at a conclusion has to whethei the death was homicidal. There is no dispute as the identity of the body and the question of homicidal has to be considered in the context of the other evidence it ' _ by the prosecution.
7. The accused is none else than the grandson (daughtefis son) of the deceased. Venkatesh (PW.1} is the .r>é--
CRL. A. N0.1gG4I20()5
- 3 _ brother of Muniyamma (PW.3), who is the mother of the accused. So also, Puttamma (PW.4) is the Wife of and they are related to each other. So tar as the incidentfof fire by the accused is concerned, PWs.1, 3 supported the case of the pmsecnrfioa,' 'now<.":it necessary to note that as these were_:"no't Witnesses, their hostile evideneevdoes not have an'y._:e1"fect overt V the prosecution. So far as the 1not:t've_ _VconeeIned,_it is stated by the wimesses i.e., as regards the quarrel 10) and Muniyamma (:9w.3), she supports the prosecution to this extent. the of PW. 1 and has not supported the acaseuof and she has tamed hostile and evidence of Venkatesh (PW. 1), which is to extentvdifconoborated by the evidence of Muniyamma {"PW.3), "no: other witnesses support the motive aspect. Any V' we look into and scrutinize the evidence of Dasappa ....',:(§§V?.2), he states in his evidence that Channagiri (cw.1o) had hdzztiven out his mother from the shed in the land and that the deceased alone was staying in the shed. He also states that >< CRL. A. No.1g04/2005 _ 9 _ after the incident of setting fire, when he had gone to the people collected informed him that a boy _ to the shed. He also referred to the names of- , (PW.9) and Kullaiah (PW. 14). ¢.~;;¢:1;,,,tvest;gas:. (PW. 1) has supported the version of the therefore, now we have to look itiiodthis evidei1ceV'on'1'the motive aspect in the context of eofftbe eye fitritaesses i.e., PWs.9 and I4.
3," dd Lake dd ' * :"(P$v,.9)«%dé;ii:i her husband Kuflaiah (PW.I4) the land of deceased Thimmaiah PW}? her evidence that on the date of the at atndout------3'.{)O p.1n., the accused came to their tooktheijkench and informed them that he had come to see ifisgx-any ' afaggm, the deceased. He was there in the land 1511 < Cthe eeeaiag ntaours and at about 5.00 p.m., lakshmae .'9), the accused assaulting the deceased with a club. oaesfioned the accused, but the accused threatened her " having no other Way, Lakshmamma (P'W.9) returned to her d A land. At about 7.00 p.m., when PW.9 and her husband were in their house, the accused came to their house, damaged the TV >< CR1... A. 110.1204/2005 .. 19 _ and took away some axficles. Again at about 9.00 p.m., he came and thxeatened PWJ9 by showing a knife and therefore, they had no other option, but to leave the both PWs.9 and 14 left their house and Went Ramaxma (PW. 13). They stayed Vb (Pw.13) in the night and when they te the momm' g, they found that shedhwas bum' their" V Television and the Fan were They the shed ' and the body of the eeeeeeee as the aniva} of the accused about 9.00 p.:n., she states that the accused. showing the knife and entered V their house. by the conduct of the accused, they Went to the house of Ramanna (PWJ3). In they saw that the shed was burning. It is Z zelesrant notedmat the spot mahazar (Ex.P.2) was held in the " Kullah-ah' (PW. 14). The perusal of the evidence of A 14 reveal as regents the movement of the accused 3.00 p.m. til}: the night at about 9.00 pm. and PWK9 .. {states in her evidence that in the evening, the accused was assaulting the deceased with the club and both these witnesses xi CRL. A. NO. 120412005
-11- "
PWs.9 and 14, though are the adjoining land enemity against the accused and the_re»vis_ no Vt ' faisely impiicate the accused, as ivwhes deceased and also threatenedthent with We find that the evidence of 'v§fitnessesv'_AAis_fi§unbiased, consistent and trust { _The etc:-'_ the appellant was not able to show. to discard the evidence of fl 2 V V. A upon the evidence of the eye idoes not play an important role, we feel_ thet" quarrel between Channagiri '~ and {P'W.3) for giving the food grains, the " have felt that it is the deceased, who was Iespcjiisihle quarrei amongst the family members. Apart ' Ufimn this",z:_itV is most relevant to note that even the Doctor states in his evidence about the lacerated injuries on of the deceased at two places. Both these injuries " a place in the postmortem report (Ex.P.5). The deceased é had sustained the injuries much earlier to the accident and had no strength to protest and the fact that on the date of the
96..
CRL. A. NO.1204l2005
-12 - V incident, PWI9 witnessed the accused with the club, even the medical of the eye witness F'W.9. evidence"
has been corroborated by thedevtde-nee of the that in the night, after the threat "F;Ws.9 and 14, Went to the house of stayed in the night and this feet: 13. He says that on that and 14 came to his house and .askedthe accused is assaulting the deceased a.m., PW213, a person who was aged abont 7f time of the incident did not go to to enqzdtfe accused and asked PWs.9 and 14 to stcepin and accordingly F'Ws.9 and 14 slept in that next day morning, they went to their house. So vsfhstever that happened in the night hours in between " 14* end the accused is further corroborated by the eeidenoe of Ramanna (PW .13), who is an elderly man and has ':.:-.o.f§gn1dge against the accused or any other persons. The "scrutiny of the evidence of these three witnesses reveals that their evidence is natuxai, consistent, cogent and believable. bé, cm. A. N().1204l2_O05 _ 13 ..
Nothing is elicited in their cmss examination to disbelieve their version. Yellamma (PW. 11) is the Wife of the deceased.and._Vshe was not in the shed on the date of incident and _ out earlier to the incident. Her evidence is notef.
10. After the arrest of the statement was recorded by .i1'."S)t V the investigating oficer (PW. " ' Kfishna Reddy (PW.12), an attesting wittzetss an;2,'§)tiiei:e_iand from a hidden place neer " a knife and produced the same which was (Ex.P.'?). This recovery is also wccrzcboxates the evidence of PWs.9 V' and both theiseviifiiniesses have stated that on the date of accused came and threatened them by showjing a_knit'e;}: Though this evidence is not sufficient to base "the conviction, the evidence of the eye Wimesses is by the evidence of Krishna Redd}; (PWJ2) and .___".the;Iecovery of the knife (M01) at the instance of the accused. it into consideration the evidence led by the prosecution, we are of the considered opinion that the Trial Court has come to a right conclusion on appreciation of the material on record f><//A JL CRL. A. NO.1204l2005 and we do not find any gmunds to warrant the Hence, we answer Point No.1 in the negative pass the following:
oRDERV7 The appeal is dismissed; A11"'.:g__ 1ht; and" V sentence awarded by tb; for fl;ie-- voflciice under Section 302 IPC.