Karnataka High Court
Vithal S/O Veerappa Varadi vs The State Of Karnataka on 3 December, 2021
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.A.NO.2742/2013
BETWEEN :
VITHAL S/O VEERAPPA VARADI
AGE: 35 YEARS, OCC: AGRICULTURE
R/O GALAGIHULAKOPPA, TQ: KALAGHATAGI
DIST: DHARWAD.
.... PETITIONER
(BY SRI. V.G.BHAT, ADVOCATE)
AND :
THE STATE OF KARNATAKA
R/BY SPECIAL PUBLIC PROSECUTOR,
HIGH COURT CIRCUIT BENCH, DHARWAD.
.... RESPONDENT
(BY SRI.PRAVEEN K.UPPAR, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374 (2) OF
THE CODE OF CRIMINAL PROCEDURE SEEKING TO SET
ASIDE THE ORDER DATED 20.07.2013 AND 22.07.2013
RESPECTIVELY IN SESSIONS CASE NO.156/2012 PASSED
BY THE LEARNED PRINCIPAL DISTRICT AND SESSIONS
JUDGE, AT DHARWAD, IN THE ENDS OF JUSTICE.
THIS APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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: JUDGMENT :
Accused is impugning the judgment of conviction and order of sentence dated 20.07.2013 passed in S.C.No.156/2012 on the file of Prl. District and Sessions Judge at Dharwad, where under accused was convicted for the offence punishable under Section 451 of Indian Penal Code (for short 'IPC') and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,000/- in default, he has to undergo simple imprisonment for a period of one month; for the offence punishable under Section 435 of IPC, he is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- in default, he has to undergo simple imprisonment for a period of two months; and for the offence punishable under Section 307 of IPC, he is sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.3,000/- in default, he has to undergo simple imprisonment for a period of three months. He also ordered to pay 3 compensation of Rs.10,000/- to the victim PW2- Shobha within one month from the date of this order.
2. Brief facts of the case are that, the informant-Shivaji lodged the first information against the accused for having committed the above said offences, which was registered in Crime No.192/2011 of Kalaghatagi Police Station. After investigation, the charge sheet was came to be filed against the accused for the offences punishable under Section 307, 451 and 436 of IPC. Prosecution examined PWs.1 to 15, got marked Exs.P1 to 21 and identified MOs.1 to 7 in support of its contention. The accused denied all the incriminating materials available on record. But has not chosen to lead any evidence in support of his defence. However, Exs.D1 to 7 are marked during the cross-examination of the prosecution witnesses. The trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in 4 proving the guilt of the accused for the offences punishable under Section 451, 435 and 308 of IPC and accordingly convicted and sentenced him, as stated above.
3. The accused is impugning the said judgment of conviction and order of sentence before this Court.
4. Heard learned Counsel Sri.V.G.Bhat, for appellant and learned HCGP Sri.Praveen.K.Uppar., for respondent-State.
5. Learned counsel for the appellant submitted that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. PW1 is the informant. But he is not an eye witness. His evidence cannot be believed, as he is a hearsay witness. PW2 is the victim, who states that she had not seen the accused when he came inside the house. He has stated that immediately she lost her consciousness. PW3 is the grandmother. She also 5 states that she was near the front door of the house and she had not seen the accused gaining entry into the house through the backdoor. By the time she came to the spot there were nobody and thus the evidence of PW3 is also not helpful to the case of the prosecution. Moreover, no ill-will or enmity is suggested against the accused to commit such an act. The ill-will suggested against the family members of the accused with the father of the victim that was about 7-8 years earlier to the incident, cannot be a ground to allege that the accused was having the motive or an intention to commit the offence. Learned counsel further submitted that PW4 has categorically admitted Ex.D3 and 4. According to which, the victim attempted to commit suicide and it is a case of self hanging. Under such circumstances, no amount of evidence would assist the prosecution in proving the guilt of the accused. The evidence of PWs.11 and 15 is also against the case made out by the prosecution and it is inconsistent with the same. Therefore, the 6 prosecution has not proved the motive for the accused to commit the offence and also the commission of the offence by the accused. The trial Court ignored all these facts and proceeded to convict the accused without any basis. Therefore, the impugned judgment of conviction and order of sentence passed by the trial Court is liable to be set- aside. Accordingly, he prays for allowing the appeal.
6. Learned HCGP opposing the appeal submitted that serious allegations are made against the accused for having committed the offence. PW.1 is the first informant, who lodged the first information immediately after the incident. He narrates the past history of the accused and also the motive for him to commit the offence. PW2 is the victim herself, who categorically states regarding commission of the offence by the accused. PW3 is the grandmother, who is an eyewitness to the incident and entered the house at the time when the accused was committing 7 the offence and on seeing PW3, accused had ran away from the scene of occurrence. PW5 and 6 are the neighbors, who are circumstantial witnesses. PW4 is the staff nurse, who first treated the victim and PW11 is the doctor in the very same PHC. Both the witnesses have spoken about Ex.P9 and Ex.D4. PW15 is the doctor, who treated the victim in the District Hospital, where she was admitted as an inpatient. The medical evidence is consistent with the case made out by the prosecution. There are no reasons to hold that the prosecution failed to prove the guilt of the accused. The trial Court considered all these materials on record and proceeded to convict the accused for the above said offences. There are no reasons to interfere with the finding of the trial Court. Hence, he prays for dismissal of the appeal as divide of merits.
7. Perused the materials on record.
8. The point that would arise for consideration of this Court is as under:
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"Whether the impugned judgment of conviction and order of sentence passed by the learned Prl.District and Sessions Judge, Dharwad in Sessions Case No.156/2012, is liable to be set-aside?"
9. My answer to the above is in the 'partly affirmative' for the following:
: REASONS :
10. It is the contention of prosecution that the accused trespassed into the house of PW3 with an intention to cause mischief by setting fire and set fire to the plastic tub, pot, etc., and also attempted to cause murder of PW2 by hanging her to the beam and thereby committed offences punishable under Sections 435, 451 and 307 of IPC. It is stated that accused No.1 committed offence on 11.10.2011 at 3:00 p.m and first information was lodged by PW1 on the same day at 11:00 p.m.
11. To prove the contention of the prosecution, it has examined PW1-informant himself. This witness is not an eye witness. But he came to know about the 9 incident from the victim and the eye witness and he lodged the first information as per Ex.P1. This witness was cross-examined at length by the learned counsel for the accused. But nothing has been elicited from him to disbelieve his version. Witness stated that the accused set fire inside the house. The rafter was burnt a little. But admitted that such damage caused to the rafter is not seen in Ex.P2.
12. PW2 is the victim herself. Witness stated that about a month after 06.08.2010 and on 06.10.2010, there was fire in her house and the same was informed by her to PW.1. Again on 11.10.2011 in the afternoon, accused gained entry into the house illegally, gagged her mouth by putting the cloth inside her mouth and criminally intimidated to cause her death by pouring kerosene. He tied her neck with a saree and poured kerosene on the house hold articles, which was kept therein. Immediately, her child started crying. On hearing the cry, PW.3, who is her 10 grandmother came running inside the house and cut and removed the ligature material with a sickle. She also raised hue and cry and the victim was taken to the hospital. She identified the cloth that was used to hang her. Witness also identified the cloth that was used for gagging her mouth and the ½ burnt plastic tub, which are as per MOs.1 to 4.
13. During cross-examination by the learned counsel for the accused, witness stated that she was not conscious when she was first brought to the hospital. After taking her to the hospital, she regained consciousness and noticed that the police have came there. She informed about the incident to the police. On the next day, she went to the Dharwad Civil hospital, where she took treatment for about 5 days. Witness stated that she had not sustained any bodily injuries. But there was swelling on her neck. Witness further stated that when the accused gained entry from the back door, PW.3 was on the front side of the 11 door washing the cloths. The accused had tied both her hands but she had not sustained any injuries but there was swelling. Witness stated that on seeing the accused, she had not tried to run away from the spot, as she had undergone surgery few days earlier and was not in a position to run. She lost her consciousness when the ligature material was cut by PW.3, who was aged 75-80 years. Witness denied the suggestion that she had not stated in her evidence that accused threatened her or causing her death by setting fire after pouring kerosene. She denied the suggestion that since there was ill-will and motive against the accused and his family members, a false complaint was came to be filed and that she is deposing falsely.
14. PW.3 is the grandmother of PW.2 who is cited an eye witness. Witness identified the accused and stated that on the date of incident, the accused had trespassed into the house and tied the curtains to 12 her neck, of the victim and gagged in her mouth with clothes. The child of the victim started crying and immediately she came inside the house. By that time, the accused had hanging the victim and on seeing her, accused ran away. At that time, he had already set fire to a tub. She extinguished the fire and cut the ligature with the sickle. When she raised hue and cry, one Shavakka and Seetavva have came to the spot. The injured was taken to hospital.
15. During the cross-examination, witness denied the suggestion that there was ill-will between her and the family members of the accused. She stated that about 10-12 years back, her son- Devendra and brother of the accused have quarreled and a complaint was registered in Galagihulakoppa police station. Thereafter there was no difference of opinion or Galata between two. Witness stated that on hearing cry of the child, she came rushing to the house. When she cut the ligature with the sickle, the 13 victim lost her consciousness. By that time, the accused had hanged the victim to the rafter. She removed the cloth from the mouth of the victim and thereafter she was taken to hospital. Witness stated that a saree was used as a curtain in her house and the same was used by the accused to hang the victim. She denied the suggestion that she is deposing falsely against the accused.
16. PW4 is the staff nurse in the government hospital at Galagihulkoppa. Witness stated that on 10.11.2011 at 3:50 p.m PW2 had came to the hospital complaining pain in her neck. PW1 and one Hemantagouda Patil have accompanied her. They inform that the injured was hanged with a saree. Since the doctor was not in the hospital, she sought his advice and gave tablets. The injured had not given any history, as she has not spoken anything. Witness stated that she informed the police regarding the injured coming to the hospital. As the witness has not 14 fully supported the case of prosecution, she was treated partially hostile and she was cross-examined by the learned public prosecutor. Witness admitted that she had examined the witness on 11.10.2011. But by mistake she had stated that she had examined her on 13.10.2011. She also admitted after giving first aid the victim was sent to KIMS hospital.
17. During the cross-examination by the learned counsel for the accused witness stated that only on 11.10.2011 she treated the victim girl. She had not treated the case as MLC. She had not noticed any injuries on the neck of the victim. Witness stated that she had only checked the pulse and B.P. At that time, the victim was weeping. Witness admitted the documents, which is marked as Exs.D3 and 4.
18. PW11 is the medical officer in the primary health center at Galagihulkoppa. Witness stated that on 13.10.2011, the victim had came to the PHC with a history of assault and attempt strangulation. She 15 complained of swelling in the neck as well as discomfort in breathing. Therefore, the victim was referred to ENT specialist. The victim was not in a position to speak and therefore, he instructed the nurse to take history from the other person. Ex.P8 is the MLC register, OPD chit is Ex.P9, wound certificate is as per the Ex.P10.
19. This witness was cross-examined by learned counsel for the accused. Witness stated that PW2 had come to his hospital on 13.10.2011. Witness stated that he had not mentioned regarding swelling in the neck in the wound certificate as he had not noticed the swelling but victim was complaining of such swelling. He gave intimation to the police about the case on the same day. He denied the suggestion that the victim had never came to MLC on 11.10.2011.
20. PW15 is the doctor in the district hospital, Dharwad working as Senior Specialist. Witness stated 16 that on 12.11.2011, the victim had came to the hospital with a history of pain in the throat and difficulty in swelling and in moving the neck. She gave history of the injured that on 11.10.2011 at 2:30 p.m the neighbor had assaulted her by tying saree around her neck and tried to strangulate her. She took treatment initially at PHC Galagihulkoppa, who referred the injured to the District hospital. She was admitted in the hospital on 12.10.2011 till 15.10.2011. On 12.10.2011 at 3:30 p.m the ENT surgeon had examined her and noticed the laryngeal oedema and advised her to go endoscopic evaluation in KIMS hospital, Hubli. But the patient refused to go to KIMS hospital. X-ray of the neck was taken and the injured was put on mediation. The victim had sustained grievous injuries, which was caused by blunt trauma. Accordingly, he issued Ex.P17. He had given his opinion that the injury caused to the injured could have caused by hanging with a saree. The 17 opinion is as per Ex.P18, the case sheet as per Ex.P20 and the X-ray report as per Ex.P21.
21. The witness was cross-examined by the learned counsel for the accused. The witness stated that the injured herself had given history. Witness stated that as per the referring chit of PHC Galagihulkoppa it is mentioned as it is a case of suicide. The said chit is as per Ex.P20(a). Witness admitted that there is difference between hanging and strangulation.
22. Ex.P.2 and 4 are the photos of the scene of occurrence where cut ligature hanging from the rafter is seen. Ex.P5 is the spot panchanama drawn at the scene of occurrence. Again there is reference to cut ligature hanging from the rafter, ½ burnt, fire, etc., Ex.P9 is the outpatient chit issued by PHC, Galagihulkoppa dated 11.10.2011 issued in the name of the victim-PW2. As per this document, the victim had accompanied by Mr.Shivaji Kadam-PW1 and 18 Mr.Hanumantagowda Patil of Galagihulkoppa village with a history of attempting homicide by hanging on 11.10.2011 at about 2:30 p.m in her house. As per the history, the face of the injured was covered with a towel from backside while she was feeding her baby. She was pulled towards the door and tried to strangulate with a curtain/saree material around her neck. She was breathless for a while. She was no history of loss of consciousness, any injury/wound/fracture, abnormal behavior after the incident. Ex.P10 is the wound certificate relating to PW2 issued by medical officer, Galagihulkoppa. According to this document, there was external injuries found and the victim was referred to ENT surgeon in KIMS hospital. Ex.P17 is the wound certificate issued by the Senior specialist, District hospital, Dharwad. According to which, the injured was examined on 12.10.2011, who was accompanied by a police constable. The injured complained of pain at the throat, neck movement was painful. X-ray was 19 taken with no abnormality. The injury was of grievous nature, could be caused by blunt force.
23. Ex.D1 and 2 are got marked during the cross-examination of the prosecution witnesses i.e., portions of the statement of PW1, which are not of much importance. Ex.D.3 is the letter issued by the investigating officer to the medical officer, PHC, Galagihulkoppa requesting to provide the wound certificate. Ex.D4 is the copy of Ex.P9.
24. When the accused was examined under Section 313 of Cr.P.C referring to the incriminating materials that are available on record, witness denied all those incriminating materials and only stated that he was in the field on full moon day. He has not committed any offence and a false complaint was lodged against him.
25. Relying on Ex.P9, copy of which is marked as per Ex.D4. Learned counsel for the appellant contended that it is a clear case of suicide by the 20 victim. There are no materials supporting such contention. On perusal of Ex.P9 and Ex.D4 it is mentioned therein that the victim was brought with the history of attempted homicide by hanging on 11.10.2011 at about 2:30 p.m at the home at Galagihulkoppa. As per the history, her face was covered by the towel from backside, while feeding her baby and was pulled towards the door frame (hanging site), is a door curtain (saree material) was pressed around her neck and pulled. She was breathless for a while. She was no history of loss of consciousness, any injury/wound/fracture, abnormal behavior after the incident. by no stretch of imagination, these description could be related to attempt on the part of the victim to hang herself.
26. The tenure of cross-examination of the witness on the basis of Ex.P9 and Ex.D4 is that the victim herself attempted to commit suicide by hanging and sustained injury. But the document Ex.P9/Ex.D4 21 categorically mentions that it was an attempted homicide by hanging as stated above. Moreover, there is no such cross-examination to either P.W.1 or P.W.2 or P.W.3 to substantiate such contention. The evidence of these material witnesses in the light of the material document they are highlighted above, disclose that the witnesses have corroborated one another and supported the case of prosecution, in all materials particulars. In spite of searching cross- examination by the learned counsel for the accused, nothing has been elicited from any of the witnesses to disbelieve their version or to discard the contention of the prosecution. PW2 being the victim and PW3 being the eye witness have consistently corroborated the case of the prosecution and their say is supported by Exs.P9 and 17 i.e., medical certificates. The spot mahazar, which is as per Ex.P5 disclose the situation at the scene of occurrence immediately after the incident.
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27. Even though an attempt was made during cross-examination of the material witness including PW1 to contend that there was ill-will between two families and therefore, a false complaint was came to be filed, nothing could be elicited from them in support of the same. A prompt lodging of the first information immediately after the incident supports the contention of the prosecution. The evidence of PWs.2 and 3 is quite natural and there is nothing to disbelieve their version. Therefore, I am of the opinion that the prosecution is successful in proving the guilt of the accused for the above said offence. I have gone through the impugned judgment of conviction passed by the trial Court. It has taken into consideration all these materials on record and formed an opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. I do not find any reason to form a different opinion. Hence, the impugned judgment of conviction passed by the trial Court is required to confirmed. 23
28. Learned counsel for the appellant submits that the incident had occurred during the year 2011. The accused was hardly aged 40 years at the time of incident. Now he is aged 50 years. He is having a family to support. He is the only bread winner. The victim had not sustained any serious injuries. Therefore, leniency is to be shown in his favour while sentencing the accused.
29. Considered the submission made by the learned counsel for the appellant. The wound certificate discloses that the victim had not sustained any external injuries. But however, she complained pain in the neck and she had complication in neck movement and expressed pain. However, the X-ray report also does not disclose any abnormality. The incident had taken place about 10 years back.
30. The accused was acquitted for the offences punishable under Section 436 of IPC by the trial Court. The accused was sentenced to undergo 24 rigorous imprisonment for 6 months and pay fine of Rs.1,000/- in default, he has to undergo simple imprisonment for one month, for the offence under Section 451 of IPC, even though it may extend two years. Similarly, the accused is sentenced to undergo rigorous imprisonment for a period of one year and pay fine of Rs.1,000/- in default, he has to undergo simple imprisonment for two months, for the offence punishable under Section 435 of IPC, even though the maximum sentence could have been extended up to 7 years. Therefore, I do not find any reason to modify the quantum of sentence imposed by the trial Court for these offences. For the offence punishable under Section 307 of IPC, the accused is sentenced to undergo rigorous imprisonment for a period of 3 years and pay fine of Rs.3,000/- in default, he has to undergo simple imprisonment for three months, for the offence under Section 308 of IPC. While maximum imprisonment is up to 10 years. Even though, the wound certificate discloses that the victim had 25 sustained grievous injury, the evidence of PWs.4, 11 and 15 disclose that she had not sustained any external injuries nor any injuries were found on examination. But there was pain in movement of the neck and the injured complained of swelling.
31. Under such circumstances, I am of the opinion that leniency may be shown in favour of the accused by modifying the sentence imposed for the said offence under Section 307 of IPC. Hence, I answer the above point partly in the affirmative and proceeded to pass the following;
ORDER The criminal appeal filed by the appellant is allowed in part.
The impugned judgment of conviction dated 20.07.2013 passed in S.C.No.156/2012 by the learned Prl.District and Sessions Judge, Dharwad for the offences punishable under Sections 451, 435, 307 of Indian Penal Code is confirmed.
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The order of sentence for the offence punishable under Section 451 and 435 of Indian Penal Code are also confirmed.
The order of sentence for the offence punishable under Section 307 of Indian Penal Code is modified.
The accused is sentenced to undergo rigorous imprisonment for a period of 2 years and to pay fine of Rs.3,000/- and in default he shall undergo simple imprisonment for a period of three months for the offence under Section 307 of Indian Penal Code.
The above sentence shall run concurrently. The accused is entitled for set off for the substantive sentence.
Send back Trial Court Records along with the copy of the judgment to the trial Court.
Sd/-
JUDGE AM/-®