Karnataka High Court
S.Basavana Gouda vs State Of Karnataka on 14 March, 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL APPEAL NO.2523/2010
BETWEEN:
Sri S. Basavana Gouda
S/o late Muddana Gouda
Aged about 30 years
Occ: Agriculturist
R/o Konchigeri Village
Siruguppa Taluk
Bellary District.
... Appellant
(By Sri T.M. Nadaf, Advocate)
A N D:
The State of Karnataka
by Sirigeri Police Station
Siruguppa Taluk,
Bellary District.
Represented by State Public Prosecutor
High Court of Karnataka Circuit Bench
Dharwad.
... Respondent
(By Sri Raja Raghavendra Naik, HCGP)
2
This Criminal Appeal is filed under Section
374(2) of the Cr.P.C praying to set aside the judgment
and order of conviction & sentence dated 4/5.1.2010
passed by the learned Addl. District and Sessions
Judge, Bellary in S.C. No.106/2005 and pass such
other orders that deems fit in the circumstances of the
case.
This Criminal Appeal having been heard,
reserved for judgment on 08.02.2018 and coming on
for pronouncement of judgment this day, the court
delivered the following:
JUDGMENT
The present appeal has been preferred by accused No.1, being aggrieved by the judgment and order of conviction and sentence dated 4/5.1.2010, passed by the Additional District and Sessions Judge, Bellary, in SC.No.106/2005.
2. Case of the prosecution in brief is that complainant who is the resident of Kunchigeri Village was doing agricultural work. Complainant's father has three brothers, among them he was the elder member of the family. Complainant's father's brothers 3 Muddanagouda and Pompanagouda were residing separately. Subsequently, Muddanagouda died leaving behind him his wife Thejamma, children Basavanagouda, Gadilinganagouda, Manjunathagouda, and Smt. Gangamma. The properties of the family were divided. The complainant's aunt Thejamma, i.e., wife of the deceased Muddanagouda was making galata since 4-5 years with the complainant on the ground that the share in the family properties was not given to her and in Panchayat also she made galata by demanding the share in the properties of complainant's grand father Doddabasanagouda which was given to him for his maintenance. The complainant's father told Thejamma to discharge the loan borrowed by creating a charge over the said land, but she was not ready to take the responsibility of discharging the loan taken over the said land. In spite of the Panchayat, she did 4 not agree to take share in the said land. Subsequently, Thejamma purchased a new tractor and also dug a bore-well in her land by raising a loan from the bank. The complainant's father filed a complaint before the bank authorities not to lend loan as the property was not transferred to Thejamma and he also objected for supplying the electricity in respect of the bore-well and in that context, there was an ill- will between complainant's father on one side and Thejamma and her children on other side. In that background, on 30.7.2004 at about 6.00 a.m., when the complainant had been to a hotel of one Bande Shekarappa to have tea, where the complainant's father was also present, accused Basavanagouda and Gadilinganagouda came there by holding macchu and knife and abused the complainant's father, by saying that he is the obstacle. Basavanagouda-accused No.1 assaulted complainant's father with macchu on the left 5 side of his head, thigh and thigh and caused grievous injuries. Accused No.2-Gadilinganagouda by saying that still he has not died and tried to stab him on his stomach with knife. By that time, complainant's father tried to rescue himself by putting his right hand on his stomach and in that context, blow fell on his right forearm and he sustained the injuries. By that time, the complainant, Bande Shekarappa, Hotel Erappa Rudranna, son of Mudulingammanavara saved the complainant's father and thereafter they took him to his house.
3. Again at about 6.15 a.m. on the very day, when father of the complainant was taken to the house, complainant's mother made hue and cry and shouted loudly. By that time, again accused Basavanagouda and Gadilinganagouda came along with their mother Thejamma, brother Manjunath and sister Gangamma by constituting an unlawful 6 assembly by saying that still he has not died and they should finish them. In that context, Thejamma assaulted the complainant's mother with stick on her head and left shoulder and caused bleeding injuries. By seeing the same, when the complainant went to rescue his mother, accused Basavanagouda assaulted the complainant with macchu on his left leg. In the meanwhile, Thejamma assaulted the complainant with stick on his back. Gangamma and Manjunath assaulted the complainant's mother with hands by holding her tuft and also pulled her. At that time, Kori Lalithamma, Kurubara Doddabasappa came and pacified the incident. Thereafter, the complainant was shifted to the hospital, where the police have recorded his statement and registered a case in Crime No.76/2004 for the offences punishable under Sections 143, 147, 148, 323, 504, 324, 307 r/w. Section 149 of IPC. After completion of investigation 7 the chargesheet was laid as against the accused. After filing of the chargesheet, the learned Magistrate took the cognizance and after following the formalities the case was committed to the Sessions Court. The Sessions Court took the cognizance and secured the presence of the accused. After hearing the accused and the prosecution, the charge was framed. Accused pleaded not guilty and they claimed to be tried, as such, the trial was fixed. In the meanwhile, accused No.2-S.Gadilinganagouda expired and case as against him has been abated.
4. In order to prove its case, the prosecution in all has examined 14 witnesses as PWs.1 to 14 and got marked Exs.P1 to 13 and MOs.1 to 10. After closure of the prosecution evidence, the statement of the accused came to be recorded under Section 313 of Cr.P.C. by putting incriminating material as against them. Accused denied the same. Accused have not 8 led any evidence on their behalf. After hearing the learned Public Prosecutor and the learned counsel for the accused, the Sessions Court convicted accused Nos.1 and 3 for the offences punishable under Sections 307, 324, r/w. 34 of IPC and acquitted accused Nos.4 and 5 for the offences with which they were charged. Assailing the said judgment and order, accused No.1 alone has come up in this appeal.
5. Learned counsel for the appellant-accused No.1 has contended that the incident has occurred at two places and the Police Station is at a distance of 8 kms; the complaint is filed belatedly only to concoct and include the accused persons; admittedly there is a civil dispute pending between the parties and only with an intention to pressurize to withdraw the civil case, a false complaint has been registered; that the injuries mentioned in the complaint at Ex.P1 and the wound certificates at Exs.P3 to P5 are not 9 corroborating with each other. Under such circumstances, the trial Court ought to have disbelieved the evidence of PWs.1, 2 and 4 and ought to have acquitted the accused; admittedly as PW.1 was sitting in one hotel and PW.2, son of PW.1 was sitting in another hotel it was not possible for him to know about the incident and hence there is no chance of he being witnessing the incident, the trial Court has wrongly convicted the accused. He further contended that though PWs.5 and 6 are the eye witnesses to the alleged incident, they were sitting inside the hotel and they have come to the place of the incident only after the incident has taken place. Even then, the trial Court has believed such evidence and wrongly convicted the accused; PW.6 is an eye witness near the house, but he has also come to the place after the incident and he is not at all an eye witness to the incident in question. This aspect has not been 10 properly considered and appreciated by the trial Court. He further contended that the blood stained clothes were seized after six days and no explanation is forthcoming for the said delay; there are so many lapses in the investigation; the Investing Officer has not sent the articles to Forensic Science Laboratory to ascertain whether the blood found on the clothes is a human blood or not. In that light, he relied upon a decision of the Apex Court in the case of Prabir Mondal & another Vs. State of West Bengal, reported in (2010)1 SCC 386 contending that whenever there are lapses in the investigation, benefit of doubt should be given to the accused. He further contended that though there is a delay of five hours in sending the FIR, the trial Court without considering the said aspect, has wrongly convicted the accused. He further contended that admittedly the alleged incident has taken place in a scuffle and the 11 complainant and other persons sustained injuries in the said scuffle. By taking advantage of the same, a false complaint has been registered against the accused only with an intention to take a revenge. On these grounds, he prayed for allowing the appeal by setting aside the impugned judgment and order of conviction & sentence and prayed for acquittal of the appellant-accused No.1.
6. Per contra, the learned HCGP appearing on behalf of the respondent-State has vehemently argued by contending that there is a consistency in the evidence of injured eye witness and the eye witnesses and also the injuries suffered and the weapon used. On going through the corroborative evidence produced by the prosecution, the trial Court has rightly convicted the accused persons. The doctor who treated the injured and the opinion expressed by the expert also corroborates with the evidence of PWs.1, 2 12 and 4. When there is consistent evidence to show that the accused persons were present and have assaulted the injured with an intention to cause death, the trial Court after analyzing the evidence, has rightly convicted the accused. The presence of eye witnesses PWs.5 and 6 is not in dispute and no animosity has been brought as to why they are deposing as against the accused persons and their presence is also probable and natural, that too when they witnessed the alleged incident while passing through at the place of the incident. After considering the said evidence, the trial Court has rightly convicted the accused. Merely because there a defective investigation, the said benefit cannot be given to the accused. The entire evidence has to be scrutinized to know whether the accused are involved in the incident or not. There are no good grounds made out by the appellant so as 13 to interfere with the impugned judgment and order and hence the same deserves to be confirmed.
7. As mentioned above PWs.1 to 14 have been examined by the prosecution so as to prove its case.
i) PW.1 is the injured. He has deposed that he had been to a hotel to have tea and when he was having tea by sitting on a katta, accused No.1 came there and called him to come out and started quarrelling that he has not given proper share and has given low quality of land. By saying so, accused No.1 assaulted him with macchu on his head, left eyebrow and on the right thigh. PW.1 has further deposed that his son who was also having tea in a nearby shop came there. In the meanwhile accused No.2-
Gadilinganagouda stabbed with knife to his chest and when he tried to prevent the same, the said act caused injuries to his hand. Thereafter, Shekarappa, 14 Erappa, Rudrappa pacified the things and took him to his house. After half-an-hour of the first incident, the accused persons came near his house. Gangamma and Thejamma who were holding the sticks assaulted his wife with the said sticks. Even accused No.4 assaulted his wife on her leg and stabbed with knife. During the course of cross-examination, it has been elicited that the civil cases are pending between the parties. It was also admitted by this witness that the injured persons have given objections to the bank for extending the loan. Except this, nothing has been elicited from the mouth of this witness.
ii) PW.2 is the injured complainant and eye witness to the alleged incident. He is son of PW.1. He has deposed that on 30.7.2004 at 6.00 a.m., his father PW.1 had been to hotel for having tea. Later, he also went and at that time, accused No.1- Basavanagouda and accused No.2-Gadilinganagouda 15 also came there by holding macchu. By abusing in filthy language that no proper partition has been done, with an intention to finish PW.1, accused No.1 assaulted on his head, but the said blow hit on the backside of his head. Thereafter, he assaulted on the eyebrow and right thigh of PW.1. Accused No.2 tried to stab PW.1, at that time, PW.1 tried to escape and the said blow hit his elbow. At that time, Shekarappa, Eranna and Rudrappa pacified the incident and thereafter they took PW.1 to his house. PW.2 has further deposed that at about 6.25 to 6.30 a.m., when they went near the house, his mother, by seeing PW.1, raised her voice by screaming and asked them as to what happened. They explained about the incident and at that time, the accused persons again came there. Accused Nos.4 and 5 pulled tuft of his mother, dragged her and gave a punch on her back and also kicked her. When PW.2 came presuming that 16 they may assault his father, by that time, accused Nos.1 and 2 they tried to assault his father. The said blow hit PW.2. Accused No.4-Thejamma also assaulted on his back with stick and assaulted his mother on her left shoulder and backside. Lalithamma Kurubaradoddappa, Sambaiah pacified the incident. Thereafter, PW.2 went to the Police Station and filed the complaint as per Ex.P1. During the course of cross-examination, PW.2 has admitted that Shekarappa was not known as to what had happened in the hotel. It is also admitted by him that during morning hours, people in the village go to hotel for having tea. At the time of incident he was in the nearby hotel of Ammanna. Except that, nothing has been elicited from this witness.
iii) PW.3 is the doctor who examined the injured PW.1 and issued wound certificate as per Ex.P3. He also examined PW.2 and his mother PW.4 and issued 17 the wound certificates at Exs.P4 and P5. During the course of his cross-examination, nothing has been elicited so as to discard his evidence.
iv) PW.4 is the mother of the complainant, who has also sustained the injuries in the incident. She has also deposed about the civil dispute pending between the parties, so also about the second incident which has taken place in front of her house. She has reiterated the evidence of PW.2. She has admitted in her cross-examination that if a galata takes place in front of her house, the same cannot be heard in the house of Lalithamma. Except that nothing has been elicited from this witness.
v) PWs.5 and 6 are the eye witnesses to the alleged incident. PW.5 was present near the hotel and he has also deposed that the accused persons came there by holding macchu and knife. Accused No.1 18 assaulted PW.1 with macchu on his backside of the head and eyebrow. Accused No.2 tried to stab and at that time, the blow hit the right hand of PW.1. During the course of cross-examination, PW.5 has stated that after hearing the galata in the hotel, all persons did not come except them. He has admitted that Rudranna and Virupanagouda are the relatives. PW.6 is an eye witness to the incident taken place in front of the house of PW.1, who has reiterated the evidence of PW.4. During the course of cross-examination of these witnesses, nothing has been elicited so as to discard their evidence.
vi) PW.7 is the punch witness in whose presence the blood stained clothes were seized under seizure mahazar at Ex.P2. PW.8 is another punch witness to seizure mahazar at Ex.P7 under which the weapons were seized at the instance of the accused persons. During the course of cross-examination of these 19 witnesses, nothing has been elicited to disbelieve his evidence.
vii) PWs.9 and 10 are also punch witnesses to Ex.P8, the seizure mahazar under which the blood stained soil was collected and Ex.P9 the spot mahazar. During the course of cross-examination, nothing has been elicited so as to discard their evidence.
viii) PW.11 is the Police Constable who carried the FIR to the jurisdictional Court.
ix) PW.12 is another Police Constable who took the injured to the hospital,
x) PW.13 is an eye witness who was supposed to depose about the incident in question. But he has not supported the case of prosecution and treated as hostile.
20
xi) PW.14 is the Investigating Officer who investigated the case and filed the charge sheet as against the accused.
8. In view of the above evidence, let me consider whether the contentions raised by the appellant's counsel are sustainable in law. As could be seen from the evidence of PWs.1, 2 and 4, they have consistently deposed that accused Nos.1 and 2 came near the place of incident. Accused No.1 assaulted on the head of PW.1 with macchu and when PW.1 tried to escape, the said blow hit on the backside of his head and thereafter accused No.1 also assaulted on the eyebrow as well as on the thigh of PW.1. Accused No.2 tried to stab with knife, at that time, the said knife caused the injuries to hand of PW.1. The said evidence of PWs.1 and 2 is also corroborated with the evidence of the PW.5 in so far as the first incident is concerned. There is no material 21 to disbelieve the evidence of these witnesses. It is the common tendency in the village that people go to hotels for having tea and admittedly the alleged incident has taken place at about 6.00 a.m. The presence of PW.5 at the place of incident appears to be natural and probable. Nothing has been elicited during the course of cross-examination of PW.5 to substantiate the fact that he has not seen the incident and he was not present at the place where the alleged incident has taken place and he is deposing against the accused with some animosity. So far as the suggestion of the learned counsel for the accused that though there were so many persons present in the hotel, only PW.5 alone came to rescue the injured PW.1 is concerned, it is not necessary that all the persons who were present at the place of the incident must rush to the injured and rescue or pacify the quarrel. It is commonly noticed that it is only 22 relatives, friends or known persons who rush to help and other persons will be under fear and they will not be ready to involve themselves in a criminal case. In that light, the contention of the learned counsel is not acceptable.
9. In so far as the second incident is concerned, there is also consistency of evidence of PWs.1, 2, 4 and 6, who have categorically stated the acts of each of the accused and the manner in which they assaulted the injured. This evidence of injured witnesses also corroborates with the evidence of PW.3, the doctor who examined the injured PWs.1 2 and 4. The doctor-PW.3 has deposed about the injuries suffered by each of the injured and there is a corroboration with the evidence of PWs.1, 2 and 4 with the wound certificates at Exs.P3 to and 5. During the course of cross-examination of the doctor-PW.3, it was tried to bring on record that if a person falls from 23 a katta and if his body comes with contact with a sharp edge, the injuries which are mentioned in Ex.P3 may be caused, but he denied the same. When there are eye witnesses and they have categorically deposed about each act done by the accused and assault, then under such circumstances, there is no chance of PW.1 falling from katta and receiving injuries. Be that as it may, there are three inured persons and all of them would not have fallen simultaneously and sustained such injuries. Hence, the theory put forth in this regard does not stand to reason.
10. It is an admitted fact that a civil dispute is pending between the parties in respect of partition of the properties. When there is a specific motive and the same is supported with reference to the injuries suffered by the injured witnesses, then under such circumstances, it can safely be held that the evidence 24 of PWs.1, 2 and 4 has been corroborated with the evidence of independent witnesses PWs.5 and 6 and with Exs.P3 to P5 and also motive. When the injured witnesses have specifically stated as to how the accused have assaulted them and the injuries mentioned in Ex.P3 to 5 also corroborate with their evidence, then under such circumstances, there is nothing to discard the evidence produced by the prosecution. As could be seen from the impugned judgment, the trial Court has opined that the prosecution has not proved the guilt of accused Nos.4 and 5, but there is sufficient and acceptable evidence as against accused Nos.1 to 3 are concerned. Since accused No.2 has already died and there is evidence available as against accused Nos.1 and 3 as well as there is a motive with regard to sharing of the properties of their grand father, accused persons have assaulted the injured near the hotel and thereafter 25 near the house of the injured, appears to be natural and probable. When there is consistency in the evidence of all the witnesses, there is nothing to disbelieve their evidence. In this behalf, the prosecution has clearly established the fact that accused Nos.1 and 3 have assaulted PWs.1, 2 and 4.
11. When the entire evidence of the prosecution is credible and reliable with cogent material, then under such circumstances, minor discrepancies in the version of the eye witnesses cannot come to the aid of the accused. This proposition of law has been held in the case of Kathi Ramku Alighbhai Vs. State of Gujrath, reported in AIR 1993 SC 2472, wherein it is held as under:-
"Murder - Proof - Appreciation of evidence
- Old enmity between accused and family of deceased - Accused attacking deceased with knife - Son, nephew and brother of 26 deceased witnessing incident - Their evidence cogent, consistent, supported by other witnesses and corroborated by medical evidence - No indication of false implication - No variation or contradiction in F.I.R. - Minor discrepancies pointed out by trial court while rejecting their evidence and reasoning give therefore, wholly unsound - Conviction based on evidence of eye-witnesses was proper."
12. Keeping in view the ratio and evidence on hand it can safely be held that the prosecution has established the guilt of the accused beyond reasonable doubt.
13. Learned counsel for the appellant has contended that the injuries suffered by the injured are simple in nature and therefore the trial Court ought to have convicted the accused for the lesser punishment. In order to substantiate his contention, he relied upon 27 the decision in the case of Venkatesh Vs. State of Karnataka, reported in 2009 Laws (Kar) 8 37, wherein it is observed at paragraphs-11 and 12 as under:-
"11. It is pertinent to note that the accused committed the said act of assault on the injured and thereby inflicted on his person the said injuries on the spur of the moment, in the heat of passion, without any premeditation, being enraged against the injured, as the injured intervened in the quarrel between himself (accused) and the father of injured. Having regard to the circumstances under which the accused assaulted the injured, resulting in the said injuries, it could not be held that while so assaulting, he intended to cause the death of the injured or to cause him such bodily injury as is likely to cause death of the injured. Therefore, considering all the facts and circumstances of the case, it could be held that while so assaulting the injured, 28 the accused intended to cause some injuries to his person as he had intervened in the said quarrel. Besides this, none of the injuries is proved to have been grievous in nature as defined under Section 320, IPC.
12. Therefore, I am of the considered opinion that the above submissions of the learned counsel for the appellant-accused deserve acceptance and conviction of the accused deserves to be altered to the offence punishable under Section 324, IPC and consequently sentence of RI for 7 years deserves to be reduced. Maximum period of imprisonment prescribed for the offence under Section 324, IPC is 3 years. Therefore, having regard to all the facts and circumstances of this case, I feel that the ends of justice would be met with if the appellant-accused is sentenced to undergo RI for a period of two years only."29
14. I gave my careful and cautious attention to the said decision. The said decision is not applicable to the present facts of the case, wherein injuries were inflicted on the spur of a moment in the heat of passion without premeditation. In that light, this Court reduced the sentence, but in the case on hand, no such circumstances are shown, as such no such benefit can be given to the accused.
15. Be that as it may, as could be seen from the evidence of PW.1, coupled with the evidence of PW,3- Dr.Venugopalrao, Injury No.1 is on the backside of head; Injury No.2 is on the left side of eyebrow; Injury No.3 is on elbow; Injury No.4 is cut injury by the side of Injury No.3; and Injury No.5 is on the right thigh of PW.1. Injury Nos.1 and 5 are serious in nature and x-ray reveals that the bone of the thigh has been fractured. When accused No.1 has assaulted with macchu on the head, thigh and eyebrow of PW.1 30 which itself clearly goes to show that he has committed the alleged act and the same may likely to cause death. Apart from this, even the words used by the accused while assaulting the injured show the intention to cause death which attract the provisions of Section 307 of IPC are to be attracted. There are no grounds made out by the accused No.1-appellant to show that he is liable to be punished for lesser offences. There is no force in the arguments advanced by the appellants counsel and the same is hereby rejected.
16. One more contention of the learned counsel for the appellant is that none of the seized articles was sent to the Forensic Science Laboratory for examination, whether blood found on the articles is of human blood. In that light, he prayed to give benefit of doubt by relying upon the decision in the case of Prabir Mondal & another Vs. State of West 31 Bengal, (cited supra). I have gone through the said decision, where the incident itself was doubtful and the manner in which the assault was done with blade was also not accepted. In that light, benefit was given for having not sent the articles to Forensic Science Laboratory for examination. But, in the instant case, there are eye witnesses to the alleged incident and accused are not disputing the injuries, but the contention is that injuries are due to fall from katta, but the same has not been established. Even on close reading of the evidence of PW.14 the Investigating Officer, there is no deliberate attempt to misdirect the evidence and withhold the material evidence from the Court. In that light, the contention of the learned counsel does not have any force and same is rejected.
17. During the course of arguments, it is also contended by the learned counsel for the appellant 32 that incident has occurred on 30.7.2004 at about 6.00 a.m., and the FIR was submitted to the jurisdictional Court on the very day at about 12.00 Noon and the distance between the place of incident and the Police Station is only 28 Kms., which itself indicates that there is concoction and implication in the said complaint. The records would disclose that the first instance has taken place at about 6.00 a.m. and the second incident has started about 6.30 a.m. The complaint was received in the Police Station at about 7.15 a.m. and the same was registered in Crime No.76/2004. Thereafter somebody might have carried the FIR to the jurisdictional Court so as to deliver the same and might have delivered at about 12.00 Noon. Under such circumstances, there is no inordinate delay in transmitting the FIR to the jurisdictional Court, that too when the complaint itself is said to have been lodged at about 7.15 a.m. In that light, 33 the contention in this regard also does not stand to any reason.
18. In so far as the contention of the appellant's counsel that the witnesses who have deposed are interested and relative witnesses and because of civil disputes, they have deposed as against the accused is concerned, it is well settled principle of law that merely because the witnesses are interested witnesses, their testimony cannot be discarded, but however, the said evidence has to be scrutinized very cautiously and carefully. In that background, if the evidence of PWs.1, 2, 4 to 6 is perused, there is consistency and though they are related, there is no such evidence brought on record that they have deposed falsely only to implicate the accused persons. In the light, the said contention is also rejected. 34
19. I have carefully and cautiously gone through the records, including the impugned judgment passed by the trial Court. The impugned judgment and order is neither capricious nor erroneous so as to interfere with the same. The appellant has not made out any good grounds so as to allow the appeal and set aside the impugned judgment and order of conviction and to acquit the appellant. The same deserves to be confirmed and it is confirmed.
Accordingly, appeal being devoid of merits, stands dismissed.
Sd/-
JUDGE ck/-