Karnataka High Court
Shivanand vs The State Of Karnataka on 7 September, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7 T H DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.2601 OF 2010 (C)
BETWEEN:
SHIVANAND
S/O.MADIVALAPPA KURESHINAVAR,
AGE : 34 YEARS,
R/O.LOKUR, TQ AND DIST-DHARWAD.
... APPELLANT
(BY SRI.K.L.PATIL, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY DHARWAD RURAL POLICE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR.
....RESPONDENT
(BY SRI.PRAVEEN K.UPPAR, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 02.03.2010 BY THE
LEARNED PRINCIPAL SESSIONS JUDGE, DHARWAD AT HUBLI IN
S.C.NO.86 OF 2006, THERE BY CONVICTING THE APPELLANT FOR
THE OFFENCE PUNISHABLE UNDER SECTION 307 OF I.P.C. AND
:2:
Crl.A.No.2601/10
SENTENCING RIGOROUS IMPRISONMENTS FOR FIVE YEARS AND
FINE OF RS.25,000/- WITH DEFAULT SENTENCE TO UNDERGO
ONE YEAR.
THIS APPEAL COMING ON FOR HEARING, THIS DAY THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal of accused No.1 arises out of the Judgment and order of conviction and sentence dated 02.03.2010 passed by the Principal Sessions Judge, Dharwad in Sessions Case No.86 of 2006. By the impugned Judgment and Order the trial Court has acquitted the accused of the charge for the offence punishable under Sections 302 and 504 read with Section 34 of I.P.C and convicted the appellant/accused No.1 for the offence punishable under Section 307 of I.P.C. and sentenced him to rigorous imprisonment for five years and fine of Rs.25,000/-.
2. The Principal Sessions Judge, Dharwad tried accused Nos.1 and 2 for the charges of the offence punishable under Sections 302, 504 and 114 read with Section 34 of I.P.C. on the basis of the charge sheet filed by :3: Crl.A.No.2601/10 Dharwad Rural Police in Crime No.75 of 2005 of their Police Station.
3. The case of the prosecution in brief is as follows :
Accused No.1 was the elder brother of victim Gurupadappa. PW-1 is the wife of deceased Gurupadappa. Accused and deceased were living in different parts of the same house in Lokur village of Dharwad Taluka. There was dispute between the 1st accused and the deceased regarding sharing of the house in which they were residing. PW-1 was doing tailoring work and deceased was helping her in the same.
On 10.06.2005 at 4.30 p.m. PW-3, 10 and 16 the customers came to the house of the deceased to collect the clothes. The 1st accused objected for their entry into the house and tried to obstruct them. When Gurupadappa tried to pacify accused No.1, he assaulted Gurupadappa on his head with the axe M.O-4 causing grievous injuries. PW-1 on seeing incident raised the alarm. PW-4, 5 and 9 rushed to :4: Crl.A.No.2601/10 the spot. They shifted the injured to the Garag Primary Health Centre. There CW-13 Dr.Shashikant Kiragi initially treated the injured and issued M.L.C to Garag Police Station. On receipt of the MLC, PW-11 P.S.I. of Garag Police Station visited the hospital and recorded the statement of the victim as per Ex.P-7. On the basis of the said statement, he registered the F.I.R Ex.P-6. Then the victim was shifted to District Hospital, Dharwad and from there to K.I.M.S. Hospital, Hubballi. He was treated as inpatient in the said hospital from 10.06.2005 to 06.09.2005. After his discharge from the hospital, he died on 08.09.2005.
PW-19 conducted the further investigation, visited the spot and conducted the spot mahazar Ex.P-1. During the spot mahazar, he allegedly seized the axe M.O-4 in the presence of the pancha witness PW-2 Padeppa Basappa Bagalkoti. He recorded the statement of the witnesses, seized the bloodstained clothes of the deceased under the mahazar Ex.P-2, :5: Crl.A.No.2601/10 collected the wound certificate and filed the charge sheet.
4. Though initially F.I.R. was registered only against accused No.1, on the basis of the further statement of PW-1, accused No.2 was also arrayed as accused later. On the death of the victim, Section 302 of IPC was included in the case and ultimately charge sheet was filed for the offence punishable under Sections 302, 504 and 109 read with Section 34 of I.P.C as aforesaid. It was alleged that accused No.2 abetted the accused No.1 to commit the offence.
5. On committal, the trial Court framed the charges for the offence punishable under Sections 302, 504, 114 read with Section 34 of I.P.C. The accused denied the charges and claimed to be tried. To substantiate its case, the prosecution examined P.W-1 to P.W-19 and got marked Ex.P-1 to Ex.P-21 and M.O.1 to 6.
6. On examination of the accused and hearing the parties, the trial Court acquitted accused No.2 of the charges for the offence punishable under Sections 302, 504 and 114 read with Section 34 of I.P.C. However the trial Court :6: Crl.A.No.2601/10 convicted and sentenced the 1st accused for the offence punishable under Section 307 of I.P.C. as aforesaid on the following grounds :
(i) The prosecution could not establish that the cause of death of Gurupadappa was the injuries inflicted by accused No.1, consequently the death is homicidal one.
(ii) Accused No.2 is implicated in the case subsequently by way of improvement and there is no material against her to substantiate the charges.
(iii) The 1st accused assaulting the deceased with the axe is proved by the evidence of eyewitness PW-1.
(iv) The evidence of PW-1 is corroborated by the medical evidence and the evidence of police witnesses and the complaint Ex.P-7.
(v) The evidence of PW-1 is further corroborated by the evidence of P.W-4 and 5.:7:
Crl.A.No.2601/10
7. Sri.K.L.Patil, the learned counsel for the appellant seeks to assail the impugned judgment and order of conviction on the following grounds :
(a) The trial Court relied on the solitary witness PW-1 stating that, her evidence/testimony is corroborated by the statement of the deceased Ex.P-7. At the same time, the trial Court holds that, Ex.P-7 does not amount to dying declaration. If, Ex.P-7 does not amount to dying declaration, then that is not admissible having regard to the bar under Section 162 of Cr.P.C.
(b) PW-1 is an eyewitness, as per Ex.P-7. There are improvements and embellishments in her evidence.
Therefore trial Court was not justified in relying on her solitary evidence to place conviction.
(c) Except PW-1, the other alleged eyewitnesses namely PW-3, 10 and 16 did not support the prosecution case.
:8:Crl.A.No.2601/10
(d) PW-4, 5 and 9 who allegedly shifted victim, also did not support the prosecution case to implicate accused No.1.
(e) Even the spot mahazar witness PW-2 did not support the recovery of M.O.4.
(f) There is variation regarding the scene of offence in the evidence of witnesses.
(g) There is delay in registering the complaint and delivering the F.I.R.
(h) The above doubtful circumstances enure to the benefit of the accused. But the trial Court overlooked them.
(i) PW-1 states that, in the incident her clothes were also bloodstained, but I.O. does not seize the same.
8. In support of his contentions, he seeks to rely on the following judgments :
(I) Joseph v. State of Kerala AIR 2003 SC 507. (II) State of Haryana v. Inder Singh and Ors.
(2002) 9 SCC 537.:9:
Crl.A.No.2601/10 (III) D.Thamodaran v. Kandasamy and Ors.
(2015) 16 SCC 758.
(IV) Unreported judgment of Gujarat High Court in Special Criminal Application (Quashing) No.9092 of 2017, D.D-30.11.2017 in the case of Bhavanbhai Premjibhai Vaghela and 4 v. State of Gujarat.
9. Per Contra, Sri.Praveen K.Uppar, learned HCGP seeks to support the conviction order on the following grounds :
(a) The evidence of the witnesses clearly shows that, PW-1 was the wife of deceased and themselves and accused were living in the separate parts of the same house.
(b) In the cross-examination of witnesses, the defence counsel himself suggests that, the injuries suffered by the victim were due to fall in the house. Therefore, the scene of offence is the house of the accused and the deceased is established.: 10 :
Crl.A.No.2601/10
(c) Soon after the incident the victim was taken to the nearby Primary Health Centre at Garag. The evidence of PW-18 Dr.Rajeshwar Rudrappa Hallikeri coupled with Ex.P-16 Wound Certificate shows that the victim was brought to the hospital and soon after the incident his statement was recorded where the name of the appellant figured as the assailant. There was no scope for false implication.
(d) The evidence of PW-15 Dr.Krantikiran who treated the victim in the hospital and medical records Ex.P-13(a) show that the victim was treated in the hospital for about three months with the history of assault.
(e) The presence of PW-1 at the scene of occurrence is natural and soon after the incident her name has appeared in the medical records as the person who escorted the victim to the hospital and attended him all along. Therefore, there is no reason to disbelieve her testimony. : 11 : Crl.A.No.2601/10
(f) Though the eyewitnesses PW-3, 10 and 16 have turned hostile, PW-4, 5 and 9 the res gestae witnesses, PW-2 the spot mahazar witness deposed that accused No.1 and the deceased were residing in different parts of the same house. PW-5 also deposed that, PW-1 was the wife of the deceased and she was residing with him. Thus, the evidence of PW-1 to the effect that the victim suffered the injuries in their house in Lokur Village and then he was shifted to Primary Health Centre, Garag was corroborated by the evidence of PW-2, 4 and 5.
(g) The evidence of PW-1 that she is the wife of deceased is corroborated by the evidence of PW-5
(h) When there is testimony of eyewitness, the circumstantial evidence regarding recovery of the weapon or bloodstained clothes becomes insignificant.
(i) Though F.I.R. is not substantial piece of evidence, it can be used for corroboration. : 12 : Crl.A.No.2601/10
10. In support of his arguments, he seeks to rely upon the following judgments :
(1) Krishna Mochi and others v. State of Bihar, AIR 2002 SC 1965.
(2) Dharam Pal and Others v. State of Uttar Pradesh, (2008) 17 SCC 337.
(3) Malkiat Singh and Others v. State of Punjab, (1991) 4 SCC 341.
11. Having regard to the rival contentions the question that arises for consideration is whether the impugned order of conviction and sentence of the appellant for the offence punishable under Section 307 of I.P.C is sustainable.
12. The accused also did not dispute that, accused No.1 was the elder brother of deceased Gurupadappa. They also did not dispute that they were residing separately in different parts of the same house. It has come on record that, the said house consists of four rooms, passage, cow shed and warranda etc., The family of the accused and deceased and their mother were in occupation of different parts of the same. The portions which were in occupation of : 13 : Crl.A.No.2601/10 the accused and the deceased were divided by a common passage.
13. The accused did not dispute that deceased suffered injuries depicted in the medical records and he was treated for three months as depicted in summary sheet/discharge summary Ex.P-13(a) and ultimately he died on 08.09.2005. The question is whether the present appellant was the author of the injuries suffered by the victim. According to the prosecution, accused No.1 assaulted the victim on that day with the axe M.O-4 picking up quarrel with regard to the deceased entertaining their customers in their house and that was witnessed by PW-1, 3, 10 and 16.
14. It is further case of the prosecution that soon after the incident listening to the commotion, PW-4, 5 and 9 rushed to the scene of offence and with PW-1 they shifted the victim to Primary Health Centre, Garag. There CW-13 initially treated the victim and issued MLC intimation, on that basis PW-11 visited the hospital and recorded statement of the victim as per the Ex.P-7.
: 14 :Crl.A.No.2601/10
15. The case of the prosecution depends upon:
(1) Circumstance of motive;
(2) The evidence of eyewitnesses PW-1, 3, 10 and 16;
(3) The res gestae witnesses PW-4, 5 and 9 ; (4) The circumstance of seizure of M.O-4 the weapon of offence under the mahazar Ex.P-1 coupled with the evidence of PW-2 the panch witness to Ex.P-1;
(5) The medical evidence of PW-15 and 18; and (6) Police witnesses PW-11 and 19.
16. After the death of the victim no postmortem was conducted on the dead body. Therefore the direct cause of death could not be ascertained and that could not be connected to the injuries the victim suffered on 10.06.2005. The order of acquittal of the accused for the offence punishable under Section 302 of IPC is not challenged. Therefore, the said order has become final.
17. As rightly pointed out by the learned counsel for the appellant except PW-1 the other eyewitnesses did not support the prosecution case. Even the res gestae witnesses : 15 : Crl.A.No.2601/10 PW-4, 5 and 9 did not speak to the overt-acts of the accused. Therefore the question will be whether solitary evidence of PW-1 is acceptable. Acceptance of the evidence of PW-1 the eyewitness depends upon proof of her presence at the scene of occurrence and probability of her witnessing the incident.
18. Though the attempt is made in the cross- examination of some of the witnesses that PW-1 was not the wife of the deceased, PW-1 denies such suggestion. In addition to that, though PW-4 turned hostile, in his evidence he states that PW-1 was residing in the house of Gurupadappa and also in her parents' house, as they were residing in the same village. PW-5 also states that, PW-1 was residing with the deceased in the same house and she is the wife of the deceased.
19. An attempt was made to state that deceased has 1st wife by name Manjula and therefore PW-1 was not the wife or legally wedded wife of the deceased. In this proceeding, the Court is not called upon to decide the validity of marriage of PW-1 or the validity of her : 16 : Crl.A.No.2601/10 cohabitation with the deceased. PW-5 in the cross- examination stated that the deceased and PW-1 were living together and they have two children. The evidence of PW-1 and 5 regarding the cohabitation of PW-1 with the deceased could not be impeached in the cross-examination.
20. Further Ex.P-16 the Wound Certificate, Ex.P-13(a) Summary Sheet/Discharge Summary and evidence of Doctors PW-15 and 18 show that PW-1 had brought the injured to the Hospital and she attended him all along in the hospital. Nothing was elicited to disbelieve the evidence of PW-15 and 18 to that effect. Thus, it becomes clear that the scene of occurrence being the residence of PW-1 and her husband/victim, PW-1 is the probable eyewitness to the incident. Therefore the trial Court was justified in accepting that she is an eyewitness.
21. PW-1 in her deposition states that on the day of the incident, accused No.1 picked up quarrel with her husband regarding herself and deceased entertaining PW-3, 10 and 16 for their professional work and for that reason he assaulted her husband with the axe. When her presence in : 17 : Crl.A.No.2601/10 the scene of occurrence is natural and probable, her solitary evidence can be accepted. Nothing worth is elicited in her cross-examination to show that there was any animosity for her to falsely implicate the accused.
22. It was argued that PW-1 is the second wife of the deceased, she suppressed that fact therefore, her evidence shall be disbelieved. But the principle of falsus in uno falsus in omnibus is not accepted and followed in the Indian Judicial system. Since her presence in the scene of occurrence and her presence with the victim all along i.e., at the time of incident till his discharge from the hospital is proved by the evidence of PW-5, 15 and 18, the trial Court was justified in accepting that.
23. Further the trial Court held that evidence of PW-1 was corroborated by Ex.P-7 the statement of victim, the FIR Ex.P-6 and the evidence of PW-11 the Police Officer who recorded the statement of the victim and registered the FIR. Firstly, even without such corroboration, the evidence of PW-1 that she has witnessed the incident and the appellant is assailant is acceptable.
: 18 :Crl.A.No.2601/10
24. The learned counsel for the appellant contended that the trial court was not justified in relying on Ex.P-7 the statement of the deceased, despite holding that the same does not amount to dying declaration under Section 32 of the Indian Evidence Act. He contends that, once Ex.P-7 is not treated as dying declaration that assumes the form of statement under Section 161 of the Cr.P.C. and becomes inadmissible and unacceptable in evidence.
25. Ex.P-7 the alleged statement of the victim was transformed into a F.I.R Ex.P-6. It is true that the FIR registered under Section 154 of Cr.P.C. is not substantive piece of evidence. But the fact remains that soon after the incident PW-11 visited the Primary Health Centre, Garag and on the basis of the statement recorded, he registered the FIR Ex.P-6. Ex.P-6 shows that it was delivered to the jurisdictional Magistrate on the same day at 11.30 p.m.
26. The medical records show that the victim was brought to the hospital at 7.30 p.m., thereafter the Medical Officer issued the MLC intimation. The evidence on record shows that then PW-11 visited the hospital and on the basis : 19 : Crl.A.No.2601/10 of the statement Ex.P-7 he registered the FIR Ex.P-6. FIR is delivered to the Court within four hours of the victim visiting the hospital. Within that short span of time PW-11 had no scope for any concoction or manipulation.
27. It was contended that the incident has taken place at 4.30 p.m. and the victim was brought to the hospital at 7.30 p.m. It was contended that the distance between the scene of offence and the hospital was 5 to 7 km and this delay is not explained. It is suggested in the cross- examination of the witnesses that the hospital and the Police Station in the same vicinity. In Ex.P-6 the FIR, distance between the scene of offence and the Police Station is shown as 7 km.
28. PW-1 states that after the incident PW-4, 5 and 9 came to the spot and they arranged a tractor to take victim to the hospital. None of the witnesses state that any other mode of conveyance was available. No such suggestions are made to the witnesses. Having regard to the fact that the scene of offence is a village and the explanation of PW-1 and 5 that after arranging that tractor victim was shifted, : 20 : Crl.A.No.2601/10 the delay of around three hours in shifting the victim from the scene of offence can not be blown out of proportion, more so when the medical records show that the victim had suffered grievous injuries.
29. Apart from Ex.P-7 trial Court relies on evidence of PW-11 and Ex.P-6 to seek corroboration to the evidence of PW-1. Though Ex.P-6 is not substantive piece of evidence, having regard to Sections 6 and 11 of the Indian Evidence Act that becomes relevant evidence. In Ex.P-6 soon after the incident the name of appellant appeared as the assailant. Whether the FIR can be used as relevant fact in seeking corroboration to the evidence of the prosecution was expounded by the Hon'ble Supreme Court in Malkiat Singh's case.
30. In paragraph No.6 of the said Judgment it was held as follows:
"6. The first information report given by the Chowkidar was admitted in evidence with the consent of the defence. It is settled law that the first information report is not substantive evidence. It can be used only to contradict the : 21 : Crl.A.No.2601/10 maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an afterthought. Since the examination of first informant was dispensed with by consent Ex.P-24, FIR became part of the prosecution evidence. Under Section 11 of the Evidence Act read with Section 6 the facts stated therein namely, PW 4 was not in a speaking condition, could be used only as a relevant fact of prior existing state of facts in issue as res gestae of "the earliest information". It is not used to corroborate the prosecution case, but can be looked into as an earliest information of the existing condition of PW 4 at 9 a.m on June 5, 1984 i.e. when the report was given in Ex.P-24, PW 4 was still unconscious. When PW 4 had stated that he became unconscious as soon as he came and tapped on the door of DW 3, and fell down, by operation of Section 11 of the Evidence Act it may be relevant fact of the previous existing condition that PW 4 continued to remain unconscious till the report was given. Therefore, the FIR could be used as relevant existing state of fact namely the continuous unconscious condition of PW 4 till PW 5 SHO reached and saw him within the meaning of Section 11 read with Section 6 of the Evidence Act. When PW 4 received 7 gunshot injuries and one incised injury and ran for life to a distance with bleeding injuries, it would be quite likely that he would be under severe shock and his evidence that after reaching the home of DW 3 and knocking on : 22 : Crl.A.No.2601/10 the door he fell down unconscious appears to be quite natural and probable. The evidence of PW 5, that on seeking PW 4 in critical unconscious condition he sent him to the doctor for medical examination and the doctor administering sedation appear to be human probabilities and there is nothing intrinsic to suspect their evidence. Thus PW 4 was not in a fit condition to give statement till June 7, 1984 at 7 a.m. PW 4's evidence that he was residing at Kotli Ablu and that he knew the accused was not disputed in the cross-examination. It is not uncommon in normal human probability that he was not expected to know the names of the relations of A-3. When A-1 and A-3 came in that very night to the shop and quarrelled for non-supply of liquor on credit, it would be fresh in the memory of PW 4 and as he saw the assailants he could have easily recognized A-3."
(Emphasis Supplied)
31. In Joseph's case relied upon by the learned counsel for the appellant, the eyewitness's evidence was found improbable on the ground that signatures of the eyewitness on FIR as per his own evidence did not match with his signature on the summons issued by the Court. Similarly, in Inder Singh's case the statement of the : 23 : Crl.A.No.2601/10 eyewitness was not accepted on the ground that same did not inspire confidence and that was found suspicious.
32. In this case PW-1 does not gain any benefit by concealing the culprit of her spouse and falsely implicating the appellant. Moreover her evidence has corroboration. Having regard to the discussion above, the Judgments relied upon by the appellant are not applicable. Having regard to the acceptable direct evidence of PW-1 the lacuna if any in proving blood stains on M.O-4 or seizure of the material objects become insignificant.
33. Under the circumstances, this Court is of the considered opinion that the trial Court was justified in accepting the evidence PW-1 and convicting the appellant for the offence punishable under Section 307 of IPC. The argument of the learned counsel for the appellant that the act of the appellant does not constitute offence under Section 307 of the IPC as the incident has occurred suddenly and appellant did not assault with the intention to kill is not acceptable, having regard to the weapon used, the vital part of the body on which the blow is dealt with and : 24 : Crl.A.No.2601/10 the evidence of PW-1. There are no grounds to interfere with the impugned order of conviction and sentence. Therefore appeal is dismissed.
Appellant shall surrender before the trial Court within 10 days failing which trial court shall take steps to execute the conviction warrant.
Sd/-
JUDGE CKK/-