Karnataka High Court
State Of Karnataka By Challakere Police vs B H Thimmappa @ Dasara Thimmappa on 3 November, 2009
Bench: Manjula Chellur, V.Jagannathan
IN THE HIGH COURT OF KARNATAKA, EANGALQRE
DATED THIS THE 3RD DAY OF NOVEMBER.
PRESENT ' "
THE HONBLE MRS. JUSTICE
THE HONBLE MR. JUSTICE V,_JASANi'JATHAMy ' I
CRIMINAL APPEAL 1\fo,5'1.ci/2002; " " n .'
BETWEEN ; J'
State of Karnataka ' *
By Chailakere Police Station _ VA .__ _ APPELLANT
[By Sri. S. B. Pavin, SPP rm? DVp'l:'t:IS1-iiC;'.i"_H_,'_'Jadhav,
Advocate to assist the pA1*0Se¢L1tiu.1}'},__ '
AND:
1. B. H. Thiminaefapa @ Da'S'ara'
Thizilrrlapfia, "if. "
S/0 DaSafa'.Hanu:na.nf1-a_ ~ '
45 yueafs, P.E{ :!:'e;--;ci»;¢;+*--.. '
2. Smt.ADjiDamfI1a A'
W/0 Dasara Hanumappa
years .....
» --S.;n:.., £;aksf11nidevi
__W/'0. H_ V'{.'_hi~mmappa
4}--1'year3'-Y}:-.
afeé fit-Sxidents of
Ramqiegihalli
A Challétkere Taluk RESPONDENTS
Sm. Sharanappa Mathur. Advocate for Respondents I1(i>s.l to 3} *=i¢* This Crl.A. is filed under Section 378(1) and (3)___Cr.P.C. by the SP? for the state praying that this I-Ion'ble Couirt_Vinay be pleased to grant leave to file an Judgment dated 31.12.2001 passed by tl'1:€:"
Sessions Judge, Chitradurga $.C.No'{ . 2 the respondents/ accused for the offences» 3 302, 323, 506 r/W 34» IPC.
This Crl.A coming on this vdAa)ti:Zs'"a§var1h'g3.3c'§'»3n_3', delivered" the fO'llO\7§Ti;I1gi' V. ' - ._ The:.S'tate aggfieved by the acquittal of the respondyentsvfor:ti?le._offe1;cesl punishable under sections 302. 323 and 5G6d19ead-'s--ec'tio'n'3-4» of IPC. V_ _2. _case* of: prosecution in short is that on aboutlHl7;'0Oam near the house of the accused at ..:VC~hallakere Taluk, when the complainant P1"e£nakka*iv_as Washing cow--dung cake on one side of the wall ofvher house and the accused were also doing the same A ff other side of the wall. At that time C.W.22 Yellamma, the mother--in--law of the complainant came there and told the accused not to wash as the wall belongs __to the complainant. This led to the quarrel between the accused assaulting the complainant who her Inother~1'n--law and when deceased Pa'pai1na,. was uncle of complainant intervened 'in t_l'1e..-t1u'arrel,'"acC:used(_2 and 3 caught hold of Papanna and accused Noilliglfelacher. "
brought a club from his Papanna on the head and injuty. The said Papanna was talien Chithradurga then to Bapugii succumbed to the injuiies at 12 noon.
Prerna};1§:a.:{tl1se4"e:oVi'nplainant lodged the complaint with P.W.4l8~M;Cif5asi1ai§atamurthy on 3.4.97 at 11.45am andjcase was iegistered in crime No.66/9'7 for the offences Visptinishableuu-nder sections 323, 307 and 505 read with and following the death of Papanna in the hospitalf section 302 of {PC came to be substituted in place is h J'o.f the offence under section 307 of IPC. FIR was sent to the at 3.40pm and the investigation started leading to the h conduct of the spot mahazar Ex.P.2, inquest was -held as per I3X.P.3 and under Ex.P4--Seizure Panchnama. M.(),__1 stick was seized. Post mortem examination was conductedvvby P.W.11 Dr.T.Parashurarnappa as per Dr.K.H.Sathyapremadevi examined" the ]5."\2\fV,i'i.V issued wound certificate Ex.P.1V3'. ::'St.atement:"'ofV'Vthefeye witnesses P.Ws.1, 2, 8 and 9.__pwere'-..r'ecorded"
D.B.Ravikeerthi~»the Engineer map as per Ex.P.17. On completing'«_:in€g*estigation_, the charge sheet was fled. 'V
4. accused not pleading guilty 'against them. the prosecution let i3'.Ws.1 to 22 and got marked After close of the prosecution e\dd_ence., accused statement was recorded and the accused , deniedpincriiminating circumstance appearing against them. accused, certain portions of the statements of the uritrresses were got marked as EX.D.1 to Ex.D.8. No defence"eVidence was adduced.
9/ the respondents~accused and carefully gone through the entire evidence on record.
8. Learned SPP Sri.S.B.PaVan for themsitaite' us through the evidence on record' «subm-:ittedbv_that'hthe prosecution has placed the testimony e'yetviti1e'svses~, P.Ws.1, 2, 8 and 9, apart the medical of V P.Ws.11, 14, and ._.Refe3:riné_:'tohthe eilviidlence of these Witnesses, submissionllélwas' the eyewitnesses have spoken 'V laccused persons and therefore, have found any defect in the eyewitnesse:s'::;:A: it of....i1'icident. Moreover, the presence of natural as the house of the complainantand' accused are adjacent to each other. V Mereiyubecause some improvements are found in the , eviden_ce.of.eyewitnesses, the witnesses could not have been __ regards the version spoken to by the pros--ecu.tion"Witnesses in so far as the incident is concerned theassault by accused--1 on the deceased is concerned. of Papanna is homicidal one is the finding of the * -~.B:octor, who conducted the post mortem examination and issued the post mortem report. Under these circumstances, the trial court was error in not acting on the eye V-witnesses account of the incident. As far as motive is con§cerncof,---- was no ill will between the deceasedHPapani'1a'andv accuspedvr 1'; " . yet, in view of the evidence of eye.witnessesrr.be-ing p'1i:iceCi:1yon record, motive is of 1nconsequence.l'A.,s 'far a.s"'thpe.4_Vdefectsl the investigation are concernedilpvbsubmissionfmade is that merely because FSL onlrecord or for that matter there is material objects before the Courltgrtlhe prosecution case W111 not talsre of e"ye?witness' account of the incidelritr appreciation by the trial court in the sett1.ed principles of law. As such, acquittal passed by the trial court is contraify. to the evidence placed on record and the learned ignored the admissible evidence and therefore,lca_se is made out for interference by this Court in this appeal. Leamed SPF also argued that the offence of znurcler has clearly been made out against the accused, in grew of section 300 of IPC.
9/
9. On the other hand, learned Counsel for the respondents~accused supported the judgment of court and argued that there are several prosecution case. All these defectsalfe taiien' give the impression that the witn;esses.for'ii»the _prolséic.ution are not reliable and their'«-evidence does"=not_inspire-i confidence. Elaborating the Counsel pointed out that in is made about the presence of eyevAu.1xrit_1iesses.,gy' 1;"e.; 8 and 9. Secondly, thelco'1'r:1plaint--Ex.P.1 about accused«2l. deceased Papanna or accusedsllv hehaldflof Papanna. Thirdly in the evidence before does not speak about the presence ofuother-eye Witnesses P.Ws.2, 8 and 9,and same is thc{.._'eV1*.C1enCE.3g of we can make out from the cross» e'>;:arriinationl'o.f_ lE7.W.21 that there is material improvement in of eyewitnesses concerning the role played by accused-52 and 3. Under these circumstances, the trial court wyasjustified in not acting on the eye Witnesses account of F§.Ws.l, 2, 8 and 9. The further defects in the prosecution case referred to by the learned Counsel are that no___ blood stain was found on the stick which was produ.ced"««blefore the court. It was an ordinary jungle wood-M.O_._ report also has not been marked" in the"'evilo_'encev.".y Yet another defect is as regards the the spot rnahazar. an'-._sketcliwTprepare.d investigating officer and nrefpared by an Engineer P.W.22. allfa.ct.s:in_gconsideration, the trial court therefore t'he..lV&'co1icIusion that no Confidence rvéposedfi of the eye witnesses ilandifilh by the trial court cannotlble on the other hand, the trial court was 'aeting on the testimony of the eye witn_esses.fu' A V V Apartygfronivvthis, learned Counsel also argued, the n;otlier--=i.n-law_of the complainant Viz., C.W.22 Yellamma was no,tlleXamin:eVd'land so also CW. 16, who had accompanied the injured Papanna and intervened in the quarrel. Referring to "if "evidence of P.W.1 it is pointed out that several persons l traveled in the bullock cart to go to the hospital, but the l l -. conceririedb ..
H} prosecution did not examine the said persons. In other words, what the learned Counsel wanted to plead '~v_vfasf'£hat the witnesses who were present have not been and witnesses Who were not presentjyhave been n*_1en't'ioned. in " . the evidence of prosecution. n"at'cu1re:1Vr_of evidence placed by the prosecn.tion,l't_he tria.IV:"go;u1ity was lei"tl' with no alternatives than to :'_tl1--f.{ the} benefit of doubt. As far as accused? £tnd;yi_t'3vfl.aiteg~concerned,' referring to the evidence of the eye that it is for the first tiine: the lthejleye witnesses have spoken accused 2 and 3. Nothing is mentioned' Even the Investigating Officerlhas' stated was stated before him by the eye _Witnessles._:as far as role played by accused--2 and 3 is if _ to the evidence of P.W.11- .Dr_.T.Parash.g_:ram,klearned Counsel argued that the injuries found on the deceased would be caused by accidental fall A "i" overgedged stone boulders. On the whole, the evidence let in by the prosecution suffers from the aforementioned defects and acquittal by the trial court, therefore, cannot be interfered with by this Court in this appeal. learned Counsel; prayed for confirming the passed by the trial court.
11. In support of the above vsubrnissions, lthc 1e1e't1;ed--V.i Counselgs place reliance on the'-decisionTephrtetyl 2007 SAR {CRIMINAL} 291 a 15%.. ports.' QVSJ STATE OF KARNATAKA AND 200 7a _ RA'ITANLA L --
VS-- STATE oT«j.;AMMU V' ' '
12. It both sides, the point for considerationefis _&V"'t3Vhethetj_'a_case is made out by the State for us 'to "inte'rfefe:."in' appeal against the order of acquittal? 4' it 1i3;A..pBefe.re we proceed to examine the evidence on lli~.ec'oTpd it belvtluseful to keep in View the scope of appeal and."".inteTfere;nce against an order of acquittal. The Apex _.llCf):1__I't he observed in the case of ANIL KUMAR --VS- STATE o;:h;p REPORTED IN (2005) soc (CRLJ 1 78 that if the View " -tvtaken by the trial court is possible in View of the evidence on y record, this Court sitting in appeal cannot interfere with the said View of the trial court merely because anoth.er_li/ééevzv is possible. At the same time, the Apex Court admissible evidence is ignored and where recorded by the trial court is pe_rve3.fse.--e'ane:1 coriclu.:s;ion:1Vis unreasonable, the High Court..__canllinterfere»'v3JVi.th..V'Vsue§h order of acquittal.
14. Of all the witnesse3s exan'lii'1ed'~by the prosecution. the material w1'At_nessese._.ar_c--.V 'land P.W.8 and _]5...uel§?l;lVV_:l:':l?rem*al<l«:a '~-the"lcoInplainar1t and in the courser._of:her has deposed to the effect that about 5 y'ears_ago_ a't.l.abo"11t 7.00am when she was Washing theof herllhouse the accused 1 to 3 came and assaulted .A andil.ac.cu.sed were also washing the wall belonging to them. alndsaidilhthat P.W.1 should not wash. At that time, her mothera-fin--'laiN Smt.Yellamma andher son Hanumappa came ltoher rescue and accused--l and 2 assaulted her mother~ir1-- 'law "also and in the meanwhile, deceased Papanna came
-«there and advised not to quarrel. Accused 2 and 3 caught hold of Papanna and accused--l assaulted Papanna from the back with a club. She has stated that accused~1 brought the club[donne} from his house and following thetassautt Papanna became unconscious having sustai,nV_ed"'b1e.edin_g _ injury. She has deposed about theggglodgingof .. Challakere as per EX.P. 1 and she :beingta;kuen.:t..j treatment and conductingfspot niathlazar jgrpier recovery of blood stained clothesyofg the"deceased.. In the cross--examination of ha_sVl"11.ot.Vvibeen shown that her testimony concerning the "that~:..'occurred near her house and the I"«as'saulting.HPapanna with a club on thevhead' has been brought out in the croAssV--examinatiVon"of"this witness that there is ill~wi11 between the pietitihoner the accused, but however, she has. .'als.ov.de--posedV that there was no ill--will between Papanna "persons. This ._ witness has denied the suggestion the deceased while coming out of the house fell dovvni. and sustained head injury.
16. P.W.2 Hanumappa is an eye witness in the
-~i'ncident. He happens to be the son of P.W.1. This witness the cross-examination that his mother was assaulted for about 5 minutes.
17. P.W.8--Yellam1na is another eye "is the wife of deceased Papanna and this dalsoy it stated that about 5 years back whenll5.'W, Wall at about 7 am. when accusedfwere alsoipreseht,';there--..L started quarrel with P.W.1 a12d""«t,heyv. andd they also assaulted husband of PW.8 came to the spoil vA'the"e__accused not to quarrel and hold of her husband Papana on the back and there was blood':"stain dfroiit of the house of accused-1. This W'itntes.-:~_ 'a1eg"5fygayt3' that her husband became un,Co'nVscious head injury and club was also blood .A stained if-.1.Ii~(4_lA.":'~..1'l(3 deceased was taken to hospital in a cart. deposed in her evidence that accused~1 assaulted her husband by saying he supports P.W.1 and has identified the clothes Mos.2 to 4 belonging to her husband. ' accused--1 assaulted her husband P.W.8 was standing
-~-rilear the gate of her house and nothing has seriously been §/ 16 brought in the cross--eXamination of this witness so far as the incident of assault is concerned.
18. P.W.9--Bheemappa, son of the decea.s.edcA'l.Papannaif fully corroborates P.W.8 in material ._ in by deposing to the effect that he hadibceentto his_jfieivd"
6.00 am. and reached his horn.e'at 6.£f5'a..n'r.a.nda"a.tv that time' accused--1 was assaulting his"n10ther--in--law and then his father welntto' accused caught hold of his father on his back and head and inside the house and closed...the_Aflldwolorl'3:3: fideposes that his father becarlie fell down in front of the house of accused; liarid blood stains at that place and speaillts 'to the =..d_eceased being taken to hospital and ,Aul.t1rnately father succumbed to injuries at Davangere hospital;"_~vQross;exa1n1nat1on of P.W.9 does not reveal that this---w1t_r1ess";was not present when the incident occurred or that histestirnony cannot be believed for any reason. When
-suggestion was put to P.W.9 the same was denied by
19. Thus, the testimony of P.Ws.1, 2, 8 and 9 reveal that the incident occurred in front of the house of the accused and the deceased Papanna was assaulted head by accused«~1 and following the head inj__u'r'y«' succurned to death on the same day in the..hos'pitai:.' As u as the death of Papanna being]: hornicida__l "is evidence of P.W.5 throws Vlight onhthis andafter djggoiiigd through the testimony P.Ws.'1.,. land 11 Dr.T.Parashuramappa.,Torre any other iriew of the matter and as for the c'ause"'hi; concerned the evidence of P.jW'.'!j_s--is that it5vvasTa'--icaseffof the death due to shock:VVdvsecorrd'ary&V theiiernorrhage or injury to the head. The injuries Vnoticedj Doctor during the post mortem examination" were;
1..;~.Biood cdiotdfivas present whole sub--aponurotic1ayer ._ 2'.' fracture skull over left pairital region ' v_ measuring 21/22" 2".
.20," Ex.P.5 is the post mortem report. During the gcros.s~exan1ination of this witness it was suggested by the _,._fiefence that the injufiund on the deceased could be caused due to accidental fall over the edge stone boulders. The said answer is only a hypothetical one. based'-"on the question, which was also hypothetical in natureL:l:B--.ut.~Vt;%.1e evidence on record does not indicate on careful scrutiny of the testimony of the eyewitnesses-'that. the fell on it the stone boulder and sustained'elinjurics"
mentioned in the post morte--ni"'rep0rt. 'l'l1,erefoVr.e,""'death of' Papanna is homicidal one, "ponl'y._inf.erence that can be possibly be drawn by thernedical:ey:ide:nc:e'~placed on record.
21. The accused could be held oiHPapanna. No doubt.
the trial: ' court'-. relied on the material improvernentsvsaid liaye been made by P.Ws. 1, 2, 8 and 9 witiril regard to"..,o\:rert&:act alleged to have been played by
3. As rightly pointed out by the learned CVo.t;nsVe1:""fgy1j respondents, in the complaint there is no mention .of"l'accused~2 and 3 catching hold of the deceased a"ccused--1 assaulting the deceased on the head. i "ii5.'V'v';'21~Yellappa, the investigating Officer has also confirmed ' " »-in the course of his evidence that the prosecution witnesses V' __ :frir_1ge. A. }9 have not stated before him to the effect that accusedwl, 2 and 3 caught hold of the deceased but mentioned :i~.§"""'""'°"' accused~1 assaulting the deceased. Thus. there"piisfrnfateiial improvement in the testimony of eyewitnesses,:"in:so'.t:'far?.}is the role played by a.ccused~2 and 3 is extent, there is some defect in the same time, the said defec-tV_a1one,__cannot to they interference that the entire of ' theeyewitnesses has to be discarded. in various decisions on app*reciat,ing"'th.te the duty of the Court grain' fromfffthe chaff and if there is a ring of' witnesses have stated, then, the Court cannot 'ignore.f'ti'a._e""core evidence of the prosecution witnesses .t:e¢ausé of certain defects which appear on V T. A"s~,.fa_;f as role of accused--2 and 3 is concerned, the is 'proved beyond reasonable doubt. Their overt ' are " .
acts not clear from the evidence, and aiso in View of the defect noticed in the prosecution case and complaint also 20 being silent. However, the same cannot be said about the role of accused-- 1.
23. Ah the witnesses for the prosecutiion' consistently spoken to the effect that accusedfl it the deceased on the head ..vto_ -ithef '-deceapsebc'. succumbed to the death. The triai'vco'a_rt therefore justified in discarding the evidence of the._fnateriai.;\viVtnessesVV that too the eye witnesses Whose wasvvnatoiral at the scene of occurrence andithedref-¢1:?e;:' with the View taken by the§.tri:a1p'p:'couict'in far as the other defects th'ej':E.eAa;rn:€:-idfiotiiisei for the defence are conceivrned,' "dei'ects of investigation and when the eye' is acceptable and convincing, defefijctv in the investigation cannot be given undue importance . uas_pAto.pdis'eVard the eye witnesses account of the entire .1fiLé:ae'z&:§."'_~_<1f11é;+e£ore, non--rnark1ng the FSL report or defect in N3.-r ma 51¢ cut so "far-.pas"the material object that is seized, k 'produced before the Court, and scene of offence being '''.different in sketch when compared to P.W.2's evidence, these " '-"defects in our opinion will not affect the core of the % prosecution case, as such, we are unable to agree with the View taken by the trial court. On the other hand, View taken by the trial court is unreasonable and...«pen(ers;e"in nature in as much as the evidence of the mate'risaltviritnersses_& have ignored and as such, the conclusion_ learned trial Judge cannot be said to be in accordance lwitha. well established principles of far*-- apprecliationll of evidence is concerned,_ "
24. Learned Cou.ns_;el for;thezrespondents contended that if this Court were]. top testimony of eyewitnesses jpas ;tiie1'e twat-_ no rnot.iifel'on"'the part of accused~ 1 to commit then';.urder-of"the"deceased Papanna and as all the witnuessesv admitted that there was no enmity bet*2§{een~ the ndeceased Papanna and the accused and the .Ai11cident~A,pl1aVing taken place in the heat of the moment all this into account and coupled with the delfects'--.Vin'the prosecution case accused--I also be given the h benefitvof doubt. On the other hand, the learned SPP for the "Sltate argued that the case against accused«~1 has been " '-"established by the prosecution and therefore. accused--1 is liable to be convicted under section 302 of IPC for the offence of murder.
25. P.Ws.1, 2, 8 and 9 are close relativesggand interested Witnesses as contended by the iearned.yC_czinselV'fbr the respondent, yet the said ground cannot be talien account to discard their eVidence"Wh'ei1« these' have stood the test of cross--e:<am._ination--.y succes,s'fully_ without any serious damage being caused thefvffevidencefl concerning the assault byg..la'ce1V_ised-~=.l on "LhetAv'Vdeceased. Therefore, the presence V0f"tliey.ey'ewitne5s'e.s is natural and merely becausethey relati_VesV'ti'lat itself cannot be a ground to Version. The entire incident occurredffatg day Vlightfat afirout 7.00am in the month of April. l~iaving.co_n:sidered the submissions made by the ' Cou.yn'se_l for the parties as far as the role of accused- 'l isi'concerned, after careful perusal of evidence on record and regard to the circumstances under which the inc-i._dent occurred and there being no ill--will between the fffdefceased and accused~1, further, accused~1. having given } \t"
23
one blow to the deceased on the head with the stick [donne), taking all these circumstances into account, we are' the opinion that the offence against accused-l the ambit of section 304 Part II of IPC and we from the scrutiny of the evidenceflplaced on not possible to infer that the accused:4'l\_Io;*l_A. intention to take life of Paparinakry Therefore, 'flight of' the aforesaid scrutiny-l" tl1et'eVir:1:encc_.on recordfand after careful perusal of the eviicierice --. let in by the prosecution, welfare of 2a_ct1uittal of accused- l by the sustained in law. But however, as"1=egard?s accused-2 and 3, the evidence does not inspirefany confider1ceV'for"the reasons already stated by us. M0T,'?QVer. theVcha.rge"'.is«also framed only against accused-1 V' . anidanioet against'faccused--2 and 3. if ' result, we allow the state appeal in part to extent_ reversing the order of acquittal passed in favour of accu_sed«1 and we hold that the prosecution has proved beyond all reasonable doubt the offence punishable under _ 'section 304 Part II of IPC against accused--1. 25 shali take necessary steps to secure the presence of accused- 1 for him to undergo the sentence.
3d/-:1 Inagéc kvs