Karnataka High Court
K.Manjunatha @ Lodde vs State Of Karnatkaa on 16 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16th DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.823/2016
BETWEEN:
1. K. Manjunatha @ Lodde
S/o Krishnappa
Aged about 29 years
R/at. Road of Anjanappa's House
Near Pavithra Kalyana Mantapa
J.P. Nagar 7th Stage,
Bengaluru-560 078.
2. H. Manjunatha @ Foreman Manja
S/o Huchappa
Aged about 29 years
R/at. Road of Anjanappa's House
Near Pavithra Kalyana Mantapa
J.P. Nagar 7th Stage
Bengaluru-560 078.
...Appellants
(By Sri M. Shashidhara, Advocate)
AND:
State of Karnataka
by J.P. Nagar P.S., Represented by SPP,
High Court of Karnataka
Bangalore-560 001.
...Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
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This Criminal Appeal is filed under Section
374(2) of Cr.P.C praying to set aside the judgment
and order dated 28.04.2016 passed by the LXIV Addl.
City Civil and Sessions Judge, Bangalore in
S.C.No.28/2010 - convicting the appellant/accused
Nos.1 and 2 for the offence punishable under Section
302 of Indian Penal Code.
This Criminal Appeal coming on for hearing this
day, B.A.PATIL J. delivered the following:-
JUDGMENT
The present appeal has been preferred by accused Nos.1 and 2 being aggrieved by the judgment of conviction and order of sentence passed by 64th Additional City Civil and Sessions Judge, (CCH.65) Bengaluru, in SC No.28/2010 dated 28.04.2016.
2. The genesis of the case of the complainant as per the complaint-Ex.P1 are that one Ashok filed the complaint alleging that he is doing real estate business. On 21.6.2009 after finishing his meals he went near C.D. shop and at about 9.30 p.m. he purchased the CD on hire and coming back, at that time his friend Suresh came on a vehicle and stopped his vehicle near Shamanna Garden Circle and at that -3- time from behind two unknown persons for some reasons abused with foul language and started quarreling with said Suresh and thereafter they chased him into the garden and one of them assaulted the said Suresh on his face and he fell down and thereafter both of them by taking a stone lying on the field assaulted on the head of the said Suresh and caused the bleeding injuries. The persons gathered nearby went to the said place and took the injured Suresh to the hospital. It is further stated that at the time of the alleged incident his friends Raghu @ Aachari, Devi, Anil Gowda and others were present. It has also been contended that the persons gathered near told the names of the assailants as K.Manjunatha and H.Manjunatha, residents of Puttenahalli, and they have tried to take away the life of the deceased Suresh. He prayed to take legal action against the said person.
3. On the basis of the said complaint a case was registered in Crime No.337/2009 for the offence -4- punishable under Section 307 r/w Section 34 of IPC. Thereafter, during the treatment the said injured Suresh succumbed to the injuries sustained by him due to assault and as such the case was converted under Section 302 of IPC r/w Section 34 of IPC. Thereafter, after investigation the Investigating Officer filed the charge sheet against the accused persons. The Committal Court after following the procedure committed the case to the Sessions Court. The Sessions Court after securing the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused prepared the charge and the same was read over and explained to the accused. The accused denied the same and claims to be tried. As such the case was set down for trial.
4. In order to prove the case of the prosecution, the prosecution got examined 20 witnesses and got marked 19 documents and also seven material objects. Thereafter, the statement of the accused -5- came to be recorded under Section 313 of Cr.P.C. the said incriminating material have been denied by the accused persons and they have not led any defence evidence. After hearing the learned Public Prosecutor and the learned counsel for the accused, the trial Court came to the conclusion that the evidence produced by the prosecution is sufficient to hold the accused guilty and as such accused Nos.1 and 2 were convicted for the offence punishable under Section 302 of the IPC. Assailing the same, accused Nos.1 and 2 are before this Court.
5. We have heard the learned counsel Sri M.Shashidhara for the appellants/accused and Sri Vijayakumar Majage, learned Addl. SPP for the respondent/State.
6. The learned counsel for the appellant/accused apart from the grounds of the appeal memorandum he further submitted that though PW6 the brother of the deceased was also present at the alleged place of incident, he has not -6- filed any complaint and the complaint is filed by the 3rd party. He further submitted that the medical records also clearly indicates that the people gathered there have taken the injured to the hospital, this shows that PW6 was not present and not a eyewitness. He further submitted that the place where the alleged incident has taken place is in front of Dhaba and the said Proprietor has not been examined, though he is important material and the best witness for the alleged incident. He has further submitted that the alleged incident has taken place in the garden land and there was no light and the said Dhaba is at a distance of 15 to 20 feet away from the place of incident and under such circumstances there is no question of eyewitness seeing the accused persons assaulting the deceased. He further submitted that the version of the eyewitnesses is not consistent, there are various inconsistencies in their evidence. He further submitted that the doctor who came to be examined has only stated one injury over the head and the oral evidence is that more than one -7- injury and in this context he submitted that there is no consistency in the medical evidence and the oral evidence, keeping the said facts the Court below has not properly appreciated the evidence and the benefit of doubt ought to have been given to the accused. He further submitted that the alleged incident admittedly has taken place in coconut garden land and there were stones and it cannot be over-ruled that the deceased might have fallen from the coconut tree and might have suffered the injuries and died due to the said injuries. He further submitted that the witnesses who have been examined before the Court are the friends and the relatives and are interested witnesses and that the evidence of the interested witnesses has to be scrutinized carefully. He further submitted that the evidence of the said witnesses is not worth believable and the same is liable to be rejected.
7. He alternatively submitted that the motive for the alleged incident in the Dhaba is that the said accused persons were taking the Kabab and at that -8- time the shoulder of the deceased brushed to the shoulder of accused and in that light there was Galata, but immediately thereafter again when they met and in a spur of moment in the said galata they took the stone and assaulted on the head of the deceased. He submitted that he was not having any intention to cause the death of the deceased. He further submitted that at the most if any offence has been committed, it will fall under Section 304-II of IPC and not under Section 302 of IPC. The trial Court ought to have given the said benefit to the accused. On these grounds he prayed to allow the appeal and set aside the impugned judgment of conviction and order of sentence.
8. The learned counsel for the appellants/accused has relied upon the following decisions:
i) AIR 1993 SC 2644
ii) AIR 1988 SC 345
iii) AIR 1993 SC 1678
iv) AIR 1959 SC 1012
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v) AIR 1974 SC 1740
vi) LAWS(KAR) 1990 3 36
vii) ILR 1995 KAR 2139
viii) 2000 Crl.L.J. 149
ix) (2009) 15 SCC 635
x) (2009) 15 SCC 643
xi) (2015) 1 SCC 694
xii) (2011) 15 SCC 196
xiii) LAWS(BOM) 2013 10 117
xiv) 1952 Crl.L.J. 1240
xv) 1972 Crl.L.J.1226
9. Per contra, the learned Additional SPP vehemently argued by submitting that PWs.1, 2 to 6 are the eyewitnesses to the alleged incident and their evidence is natural and it is also corroborated with each other. He has further submitted that PW1 who is an eyewitnesses immediately filed the complaint as per Ex.P1 and even in the complaint Ex.P1 the name of the accused Nos.1 and 2 has been placed, that itself clearly goes to show that the accused persons were the persons who assaulted the deceased. He further submitted that PW7 is the Proprietor of the
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Kabab shop where the first incident took place and he has categorically deposed before the Court that earlier there was a galata took place, thereafter the accused persons followed the deceased and immediately thereafter the alleged incident has taken place. He further submitted that in this behalf the evidence of PW7 corroborates the evidence of eyewitnesses and there is no inconsistency in the evidence of these witnesses and the trial Court after considering all the aspects has rightly convicted the appellants/accused persons. He further submitted that the evidence of the eyewitnesses corroborates with the medical evidence and even the doctor who conducted the autopsy over the dead body of the deceased Suresh has clearly deposed that death is due to the head injury and in this behalf the said evidence is also supporting the case of the prosecution. He further submitted that the accused persons chased and assaulted the deceased and caused the death and hence they are liable to be convicted for the offence under Section 302 of IPC. He
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further submitted that the evidence of PW7 clearly goes to show that quarrel took place in his shop and thereafter the accused persons followed the deceased and assaulted, that itself clearly goes to show that they were having an intention to cause the death of the deceased. Under such circumstances, the accused persons are not entitled to be given any benefit under Section 304-II of IPC. On these grounds he prayed to dismiss the appeal.
10. We have gone through the submissions made by the learned counsel for the accused/appellants and learned Addl. SPP and we have also gone through the judgment of conviction and order of sentence passed by the trial Court and the Lower Court Record and other relevant materials placed in this behalf.
11. The first contention of the appellants is that the evidence of eye witness is inconsistent and not worth believable.
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12. The prosecution in order to prove its case has relied upon the evidence of eyewitnesses i.e., PWs.1 to 6.
P.W.1 is the complainant and he is also an eyewitness to the alleged incident. In his evidence he has deposed that on 21.6.2009, Sunday, at about 9.00 p.m. he had been to Om Shakthi Enterprises, CD shop at Bommanahalli and after purchasing the CD, was coming back and when he was near Shamanna Garden circle, deceased Suresh came on two wheeler and was talking to him by stopping the vehicle. At that time, accused persons who are present before the Court also came from behind and thereafter, accused and deceased exchanged with foul language and all the three went inside the garden of one Hanumanthareddy. At that time, accused No.1 K.Manjunatha assaulted the deceased with his left hand and Suresh fell down, thereafter, accused No.1 by taking fist size hollow block assaulted him near the left eye and also on the forehead. Accused No.2 H.Manjunath also assaulted with the fist size stone
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on the head of Suresh and blood was oozing from his head. His blue colour shirt collar was also stained with blood and immediately after the assault, accused persons ran away from the said place. He also further deposed that at the place of incident P.Ws.2, 3, 4, 5 and 6 were also present and the complainant along with the said persons took him to Rajshekar hospital and got him admitted and thereafter he went to the police station and filed the complaint as per Ex.P1.
During the course of cross-examination he has deposed that in the complaint he has stated that unknown persons were making galata with the said Suresh and accused No.1 K.Manjunath assaulted with left hand on the deceased Suresh. Certain omissions have also been admitted by him during the course of the cross-examination. He has also further admitted the fact that he did not inform the said fact to the house of Suresh and he do not know who informed the said incident to the family
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members of Suresh. The other suggestions which have been made have been denied by this witness.
P.W.2 is also an eyewitness. He has also deposed that on 21.6.2009 Sunday at 9.00 p.m. he was near the Shamanna garden circle and was talking with Raghu, Anil and Devraj. At that time, P.W.1 Ashok by bringing CD came there and deceased Suresh also came on motorbike and was talking with P.W.1. At that time, accused persons came from behind and abused Suresh in foul language and took him inside the garden of one Hanumanthareddy, which had no fencing wherein accused No.1 assaulted with hand on the said Suresh. When Suresh fell down, both the accused by taking fist size stone assaulted on the head of deceased.
During the course of cross-examination it has been elicited that Shamanna Garden circle is at a distance of half kilometer from his house. His office would be open from 9.00 a.m. to 10.00 p.m. The said garden cannot be seen from inside his office. He had
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not seen the accused persons prior to the said incident and he does not know who saw the said incident first. Except this, nothing has been elicited from the mouth of this witness.
P.Ws.3, 4, 5 are also eyewitness to the alleged incident and they have also reiterated the evidence of P.W.2.
P.W.6 is the brother of the deceased. In his evidence he has deposed that on 21.6.2009 at about 9.25 p.m. when he was talking to his sister Gayathri in their house, a person wearing helmet came and informed that two persons by name H.Manjunath and K.Manjunath are quarelling with his brother Suresh near Shamanna Garden Circle and immediately, he along with his sister went on Hero Honda Pleasure to the said place. At that time, accused persons present before the Court were assaulting the said Suresh in the garden situated near Shamanna Garden Circle and that there was no compound or fencing to the said garden. He stopped his vehicle and along with four other boys who were
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present there i.e., Muniraju, Anil, Devraju and Raghu, he went to the spot and by that time, accused persons thrown the stones and fled away from the spot. He also further deposed that he has seen the said incident in the street light.
During the course of cross-examination he has stated that the persons who ran away from the place of incident were not known to him and that he is seeing them for the first time on that day. He has not given any complaint, but his statement has been recorded. He has also further deposed that he has given the statement only after the post mortem and that he has not given any statement till his brother's death as he was getting treatment to his brother Suresh and he has also not given any statement before the police even when the police visited the hospital. Except this nothing has been elicited from the mouth of the this witness.
13. On going through the evidence of P.Ws.1 to 6 it clearly shows that the said witnesses were
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present at the place of incident and they have witnessed the alleged incident. There is a corroboration in the evidence of these witnesses. Though during the course of arguments, learned counsel for the accused-appellant would contend that the presence of P.Ws.2 to 6 at the place of incident itself is doubtful and even some of the witnesses have deposed that they do not know who saw the alleged incident at the first instance, but only on the stray statement made by the witnesses their evidence cannot be discarded. If the evidence of eyewitness is found reliable and acceptable, the same can be relied upon and other evidence of the prosecution takes back seat. When the accused were chasing and assaulting the victim, one cannot expect the witnesses to give graphical description of the assault made by each of the accused and also the number of injuries caused by each of the accused. They will be having no time or it is practically impossible to go on counting the blows given by each of the accused. Under such circumstances, much importance should
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not be attached to the number of injuries sustained by the deceased and oral evidence. The Court has to see whether the evidence given by the eyewitness is natural, consistent and is supported by other evidence on record. By going through the evidence of all the eyewitnesses, it clearly shows that there is consistency in their evidence regarding the assault made by the accused persons on the deceased by chasing him from Shamanna garden circle. The entire testimony of the eyewitnesses if taken into consideration in its entirety, it clearly shows that they have seen the alleged incident. Though during the course of arguments learned counsel for the appellant-accused would submit that P.W.6 is the brother of the deceased and he has not filed any complaint and his presence at the place of incident is doubtful and even the conduct of his brother is also not natural and probable, but as could be seen from the evidence of P.W.6, he has categorically deposed before the Court that as he was getting treatment to his injured brother in the hospital, he gave his
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statement only after his brother succumbed to the injuries. Hence, the evidence of P.W.6 also appears to be natural and probable.
14. It is well established principle of law as held by the Hon'ble Apex Court in the case of Banti alias Guddu Vs. State of Madhya Pradesh reported in AIR 2004 SC 261 that when the eyewitnesses were cross-examined at length and nothing infirm is elicited to cast doubt on their veracity, merely because one of them is a relative and the other witness was known to him that per se cannot be a ground to discard their evidence. It has also been laid down by the Hon'ble Apex Court in the case of Yakub Ismailbhai Patel Vs. State of Gujarat reported in AIR 2004 SC 4209 that the testimony of eyewitness cannot be disbelieved particularly when it is tested with cross-examination at length. Keeping in view the above said principles of law if we go through the evidence of P.Ws.1 to 6, they have consistently deposed regarding the alleged
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incident and their evidence is natural and probable and there are no good grounds to discard their evidence that too when the accused persons were not known to them prior to the alleged incident and they have come in contact only at the time of alleged incident. Under such circumstances, the same can be believed.
15. Be that as it may. P.W.11-Dr.Richard Edwin in his evidence he has deposed that he was working as Emergency Physician at Appollo hospital from 22.4.2008 to 21.10.2012 and that on 21.6.2009 at about 11.25 p.m. a patient by name Suresh.A, aged 31 years was brought to the Emergency Department of Apollo Hospital with the alleged history of assault on the head on 21.6.2009 around 9.30 p.m. near his home. The patient was unconscious and he was given primary resuscitation for his severe head injury in the Emergency Department and later he was shifted to ICU for further management. In the said evidence he has
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deposed that the patient has suffered three injuries. He has also further deposed that he has issued the wound certificate as per Ex.P16 and he has also given his opinion that the said injuries could be caused if a person is assaulted with stone. During the course of cross-examination nothing has been elicited to discard the evidence of this witness.
16. P.W.12-Dr.Manjunath working at Rajshekar hospital has deposed that on 21.6.2009 at about 10.45 p.m. one Suresh was brought by public to the said hospital with the history of assault with stone on his head and the said patient was unconscious and was having breathing problem. At about 11.00 p.m. police came to record the statement of the injured, as the injured was unconscious and was not in a position to give statement, he did not give the statement. At about 11.30 p.m., the persons belonging to the injured took the injured to the Appollo hospital. During the course of cross-
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examination nothing has been elicited from the mouth of this witness to discard his evidence.
17. P.W.16-Dr.Naveenkumar has conducted autopsy over the body of the deceased. In his evidence he has deposed that he has received the requisition for conducting post mortem and he conducted post mortem from 11.05 a.m. to 12.30 p.m. and he found as many as four external injuries and he has given his opinion that external injury Nos.1, 2, 3 and 4 internal head injury could have been caused by article Nos.3 and 4 and examined by him and he has issued the post mortem report as per Ex.P8.
During the course of cross-examination, it has been elicited that he is not able to say which injury is responsible for the cause of death and other suggestions which have been made have been denied.
18. By going through the evidence of P.Ws.11, 12 and 16 along with the evidence of eyewitnesses it clearly shows that the deceased died due to the
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injuries suffered in the assault made by the accused persons. In that light there is a corroboration in the evidence of the said witnesses with that of medical evidence. Though during the course of argument, learned counsel for the accused-appellant submitted that there is no consistency in the evidence of eyewitnesses and the medical evidence, but it is well settled principle of law that if there is inconsistency with regard to the medical evidence and the ocular evidence, the ocular evidence is to be believed and the same is to be accepted. In that light the evidence of eyewitness if perused carefully it clearly shows that it is accused Nos.1 and 2 who have assaulted the deceased and caused injuries and subsequently, there after Suresh died due to the said injuries. In this regard, it is relevant to refer to the evidence of P.W.7.
19. P.W.7 is the owner of the Kabab shop near IDBI bank at J.P.Nagar. In his evidence he has deposed that on 21.6.2009 at about 9.00 p.m.
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deceased Suresh came to his shop to purchase kabab. Accused persons were also eating kabab in his shop. At that time the shoulder of the deceased brushed to the shoulder of one of the accused, as such, both the accused quarreled with the said Suresh. P.W.7 intervened and pacified them. Suresh went on his motorcycle and thereafter both the accused persons went behind him. At 10.00 p.m. the persons who came to his shop informed him that accused persons have thrown stone on the head of Suresh and that he has been taken to the hospital. During the course of cross-examination nothing has been elicited to discard the evidence of this witness.
In the cross-examination of this witness, he has categorically and consistently stated about the quarrel took place between the deceased and the accused persons and there were exchange of words between them.
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20. The evidence of P.W.7 clearly shows that prior to the alleged incident, galata took place between the accused and the deceased when the shoulder of the deceased brushed against the shoulder of one of the accused and thereafter, Suresh went on vehicle and immediately thereafter accused persons followed him and within a short span of time the alleged incident has taken place. Even as per the evidence of P.W.1 when he was coming back after purchasing CDS, deceased Suresh came on vehicle and stopped the vehicle and was talking to him, at that time, accused persons came from behind and started quarreling with him and took him inside the garden and assaulted him with stone on his head and other parts of the body. There is consistency in the evidence of P.Ws.1 and 7 and there is corroboration to that effect with other eye witnesses.
21. Though during the course of argument learned counsel for the accused-appellant would submit that there is every possibility of falling of the
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deceased from the coconut tree and sustaining injury to the head as in the said garden stones were there, but when P.W.7 has specifically stated that deceased had come to his shop for purchasing kabab and at that time accused persons were also eating kabab, there was galata and he went, by following him accused persons also went, under such circumstances, the deceased climbing coconut tree and falling from the same is unnatural and improbable and the said contention of the learned counsel for the appellant-accused is not acceptable.
22. Insofar as the other evidence are concerned they also support the case of the prosecution i.e., the spot mahazar as per Ex.P2, inquest mahazar as per Ex.P4 and seizure of clothes of deceased as per Ex.P3 and even the FSL report as per Ex.P19 which clearly shows that the blood stains found over the said clothes were of human blood.
23. Looking into all these aspects, the prosecution has clearly established its case to show
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that the accused persons who have assaulted the deceased and caused injuries and thereafter, deceased succumbed to the injuries. The trial Court, after considering all the materials, has rightly come to the conclusion that the accused persons have committed the alleged offence.
24. As could be seen from the order of the trial Court, though the trial Court has come to the conclusion that the accused persons have committed the alleged offence, but the evidence on record clearly shows that prior to the alleged incident the accused persons were not known to the deceased and they came in contact only in the shop of P.W.7 while purchasing the kabab and only for some silly reason his shoulder brushed against one of the accused the galata took place and thereafter, when the deceased left the place in his motorcycle, the accused persons have followed him and picked up quarrel and assaulted him. The evidence clearly shows that accused No.1 assaulted with hand and when deceased Suresh fell down, both accused Nos.1 and 2
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took stone and assaulted on his head. The evidence on record clearly shows that there was no pre- meditation to commit the murder of deceased Suresh. Though the learned Additional Public Prosecutor has submitted that the accused persons have followed the deceased from the kabab shop and thereafter they have assaulted him with the stone and caused his death which shows that the accused persons were having premeditation and intention to cause the death of the deceased, but if the entire evidence is looked into cumulatively, it clearly shows that the accused persons were not having any premeditation and in a spur of moment when the quarrel took place between the deceased and accused and when he fell down, they took a stone lying nearby in the garden and assaulted him. Under such circumstances, the appreciation of evidence by the Court below appears to be not just and proper. The trial Court instead of convicting the accused-appellants for the offence under Section 302 of IPC, it ought to have convicted them for the offence under Section 304-II of IPC and
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accordingly, it could have imposed the sentence. As such, the order of the trial Court requires to be modified.
25. Keeping in view the above facts and circumstances, we are of the considered opinion that the prosecution has made out a case to convict the accused-appellants. But however, the conviction is not under Section 302 of IPC, but will be under Section 304-II of IPC. At this juncture, learned counsel for the accused-appellants submits that the accused-appellants are in custody since 6 years and 7 months. Hence, keeping in view the circumstances under which the alleged incident has taken place, if the accused persons are convicted for the period which they have already undergone i.e., 6 years 7 months, it would meet the ends of justice.
Accordingly, appeal is allowed in part. The judgment and order of conviction passed and sentence imposed by the learned LXIV Addl. City Civil and Sessions Judge, Bengaluru in S.C.No.28/2010
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as against appellants-accused Nos.1 and 2 is hereby modified. Appellants-accused are convicted for the offence under Section 304-II of IPC for the period which they have already undergone i.e., 6 years and 7 months. The appellants are entitled for set-off of the custody period already undergone as per Section 428 of Cr.P.C. Insofar as the fine amount is concerned, order of the trial Court stands confirmed.
Registry is directed to intimate the operative portion of this order to the concerned prison authorities immediately.
Sd/-
JUDGE Sd/-
JUDGE *AP/BKP