Karnataka High Court
Swapan Konai vs The State Of Karnataka By on 28 July, 2018
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY 2018
PRESENT:
THE HON'BLE MR.JUSTICE B.A. PATIL
AND
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.1102/2013
BETWEEN:
SWAPAN KONAI,
S/O. MADHU KONAI,
AGED ABOUT 45 YEARS,
OCC: COOLIE,
R/O. PADGANA HOUSE,
JOYPURA POST,
BAHARAMPURA TALUAK,
MURSHIDABAD DISTRICT,
WEST BENGAL STATE. ... APPELLANT
(BY SRI. NISHAN UNNI .P, ADVOCATE)
AND
THE STATE OF KARNATAKA BY
POLICE CIRCLE INSPECTOR,
BANTWAL CIRCLE,
BANTWAL - 574 211. ... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING
TO SET ASIDE CONVICTION AND SENTENCE DATED
30.01.2012/01.02.2012 PASSED BY III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, D.K. MANGALORE, IN SESSIONS
CASE NO. 4/2010 ACQUIT THE APPELLANT AND ETC.
2
Crl.A. No.1102/2013
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, B.A. PATIL J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant Swapan Konai was charge sheeted for the offences punishable under Sections 324, 307, 302 of IPC and after the Trial, the Trial Court found the accused guilty and convicted him for the charges leveled against him. Being aggrieved by the said judgment of conviction and order of Sentence passed by the III Additional District and Sessions Judge, Dakshina Kannada, Mangalore in SC No.4/2010 dated 30.01.2012 and 01.02.2012, challenging the legality and correctness of the said Order, the appellant is before this Court.
2. The brief facts of the case as per the case of the prosecution are that;
On the previous day of the incident, when accused asked to handover the loan amount given by him to the deceased Hemanth Kumar Mandal, at that time, CW-2 Prahlad Sha and deceased Manik Konai supported to said Hemanth Kumar Mandal and on account of the said hand 3 Crl.A. No.1102/2013 loan not returned by Hemanth Kumar Mandal, in order to eliminate the deceased, the accused on 03.09.2009 at about 4.30 a.m., assaulted with iron hammer on the head and face of Hemanth Kumar Mandal and also assaulted PW-15 Prahlad Sha, when he opened the door and thereafter he went inside the room and also assaulted with hammer on Manik Konai and caused the death of two persons. Immediately the said Prahlad Sha made a hue and cry and thereafter the other witnesses came there and caught hold of the accused and tied him to the gate.
3. It is the further case of the prosecution that, immediately the said Prahlad Sha informed over the phone to PW-10 Debasis Maithi and he came to the place of incident and after seeing the said incident and as already the accused has been tied to the gate and the two persons were lying in the pool of blood with injuries, he went and filed the complaint as per Ex.P-5. On the basis of the said complaint, a case was registered in Crime No.152/2009 for the offences punishable under Sections 302, 324 of IPC. 4 Crl.A. No.1102/2013
4. Thereafter, after investigation, the charge sheet was leveled as against the accused. The Committal Court after following the formalities committed the case to the Sessions Court. The Sessions Court took cognizance and after hearing the learned Additional Public Prosecutor and the learned counsel for the accused about the charge, the charge sheet was prepared, read over and explained to the accused, the accused pleaded not guilty and he claims to be tried, as such trial was fixed.
5. In order to prove the case of the prosecution, the prosecution got examined PWs-1 to 18 and got marked Ex.P-1 to P-12 with sub-marking and also got marked MOs1 to 17. Thereafter, the statement of the accused came to be recorded under Section 313 of Cr.P.C. by putting the incriminating materials as against him. The accused has denied the said incriminating material and he has not led any evidence on his behalf. After hearing the learned Additional Public Prosecutor and the learned counsel for the accused, the Court below found that the evidence produced before the Court is sufficient to hold the accused 5 Crl.A. No.1102/2013 guilty and convicted for the charges leveled against him. Assailing the same, the accused/ appellant is before this Court.
6. We have heard the learned Counsel Sri. Nishan Unni P. and the Additional SPP Sri. Vijay Kumar Majage.
7. Learned counsel for the accused/appellant apart from the grounds mentioned in the Memorandum of appeal, he further submitted that the evidence which has been produced before the Court below is not worth believable and the Trial Court after considering the evidence has wrongly convicted the accused/appellant. He also submitted that there is inconsistency in the evidence of PWs-11 to 15. The said aspect has not been properly appreciated by the Trial Court. He further submitted that, as per the case of the prosecution, the accused has assaulted Hemanth Kumar Mandal, then, under such circumstances, there will be hue and cry at the place of incident where the other witnesses, another deceased and PW-15 were sleeping nereby, then they could have heard the said voice or galata and they could have come out of 6 Crl.A. No.1102/2013 the rooms. The said conduct itself improbablizes the presence of the PW-15 at the place of incident. He further submitted that when the accused came and tapped at the door where PW-15 was sleeping and by hearing the tapping sound, he opened the door and at that time, the accused assaulted him with the bamboo sticks. When he already assaulted Hemanth Kumar Mandal with hammer and at that time when he tapped the door, question of changing the weapon and taking the bamboo sticks and assaulting PW-15 that itself creates doubt in the mind of court and it is not probable and natural. Under such circumstances, the said incident itself is doubtful in the eyes of the law. He also submitted that after assaulting previous person, accused came and assaulted PW-15 with bamboo sticks and at that time PW-15 has made hue and cry, even then, the other person who was sleeping inside the room has not woke up and responded. Subsequently, that again he takes the same hammer and assaulted the deceased. In this behalf, the evidence so also the charge sheet led is not consistent and not probable is the fact so as to hold that the accused has committed the alleged offence. He further 7 Crl.A. No.1102/2013 submitted that the complaint - Ex.P-5 was filed by PW-10 and as he was not knowing the language of Kannada, the complaint has been written by one Manohar and the said Manohar has not been examined by the prosecution before the Court. He further submitted that the evidence produced by the prosecution clearly goes to show that, the accused was on duty and there is no question of accused coming to the place of incident. He further submitted that there was a quarrel between the deceased and PW-15 and he committed the alleged offence only in order to tie up the entire scene as to create, a false case has been registered against the accused/appellant. He further submitted that the presence of PW-15 itself is doubtful at the place of the incident. He further submitted that no spot Mahazar was drawn, no sketch has been prepared that itself clearly goes to show that, there is lack of investigation and the Court below has not properly appreciated the evidence and has erroneously convicted the accused/appellant. On these grounds, he prays to allow the appeal by setting aside the impugned judgment of conviction and order of sentence and prays to acquit the accused/appellant. 8 Crl.A. No.1102/2013
8. Per contra, the learned Additional SPP vehemently argued and contended that PW-15 is an eye witness to the alleged incident. He categorically deposed that when he opened the door, accused first assaulted him with bamboo stick and thereafter he entered inside the room and assaulted Manik Konai with iron hammer and caused the death. He has also submitted that before entering the room, he has already committed the murder of Hemanth Kumar Mandal by assaulting him with the hammer. He further submitted that the evidence of PW-8, the doctor clearly corroborate and substantiate the case of the prosecution with PW-15. He further submitted that the witnesses who were present, have seen the accused standing there by holding the hammer in his hand and immediately that he has been apprehended and he has been tied to the gate, that itself goes to show that the presence of the accused was there and he has committed the alleged incident. He also submitted that the prosecution has clearly established the fact that the earlier day, the quarrel took place between the deceased Hemanth Kumar Mandal and Manik Konai, that they have supported 9 Crl.A. No.1102/2013 the deceased and accused for having the grievance in this behalf has taken a serious step and has caused two murders. He further submitted that the conduct of the accused was also brought on record to show that immediately after the quarrel, he was not talking with any of the co-workers where he was working, then thereafter by taking an opportunity that he was on duty, came to the place of incident and assaulted with hammer and caused the death. He further submitted that when the injured eye witness has categorically deposed before the Court that the accused has assaulted and caused the death, then under such circumstances, the said evidence could be believed to bring home the guilt of the accused. He further submitted that the Trial Court after considering the entire material placed on record, has rightly come to the right conclusion and has rightly convicted the accused/appellant. The accused/appellant has not made out any good ground so as to interfere with the impugned judgment of conviction and Order of Sentence. Hence, he prays to dismiss the appeal as devoid of merits.
10Crl.A. No.1102/2013
9. We have heard the learned counsel for the accused/appellant in length. He has taken us through the entire evidence produced before the Court below including the documents and 313 statement of the accused.
10. In order to prove the case of the prosecution that the deceased Hemanth Kumar Mandal and Manik Konai died a homicidal death, the prosecution has relied upon the evidence of PW-8, the doctor who conducted the autopsy over the body of both deceased. In his evidence, he has deposed that on 03.09.2009, he received the body and when he examined the body of Manik Konai, he found the following injuries:
The body of the deceased was that of an adult male aged about 45 years, moderately build, nourished and the body was weight 55 kg and 152cms in length. The body was cold and stiff. Faint postmortem lividity was present on the back and was not fixed. Loosening of the right upper central and lateral incisor (teeth) and recent loss of right upper canine. Bilateral lower central and lateral incisors and canine absent, all the premolars and molars were present. Blood was passively oozing out from the nostrils and ears. Boggy 11 Crl.A. No.1102/2013 swelling of the right tempero-parietal region was present.
He has also deposed that after dissection, he found as many as fifteen injuries and he has given his opinion that the death of the deceased was due to cranio-cerabral injuries as a consequence of blunt force trauma and issued post mortem report, which is marked at Ex.P-7. He has further deposed that he received the body of the deceased Hemanth Kumar Mandal and conducted autopsy on the body of the deceased. On examination, he noticed the following injuries :
1. A split laceration, 4x1cmxbone deep was present on the right side of the forehead, 3cm above the midpoint of right eyebrow with surrounding contusion (6 x 4cm.)
2. A " < " split laceration measuring 3x2cm X bone deep was present on the forehead in the midline 2cm above the glabella.
3. A split laceration, 1X0.3 cm bone deep was present on the left side of the forehead, 2cm above the midpoint of left eyebrow.
4. A split laceration, 2x0.2 cm X muscle deep was present on the right side of the face 1.5cm below the right eye.12 Crl.A. No.1102/2013
5. Two lacerations, one measuring 2x0.2 cm X bone deep and other measuring 1.5 X 0.2 cm X bone deep were present on the right eyebrow, 0.3 cm apart.
6. A split laceration, 2.5 X 0.5 cm X bone deep was present on the right side of the head situated 0.5 cm behind the right ear.
7. A split laceration, 3x1cm X muscle deep was present on the right side of the head, 0.6 cm apart from injury no.6.
8. A split laceration, 1.5 X 0.5 cm was present on the right side of the neck, 1cm below injury no.7.
9. Abraded contusion, 2x1 cm was present on the right side of the neck, 0.5 cm below injury no.8.
10. A "Zigzag" shaped split laceration, 3X4 cm X bone deep was present on the back of the head corresponding to external occipital protuberance.
11. A split laceration, 3x1 cm X muscle deep was present on the back of the head on the left side, 2cm away from the external occipital protuberance.
12. A split laceration, 2x1 cm X bone deep was present, 1 cm below injury no.11.
13. Abrasion, 1x0.5 cm was present on the back of the neck corresponding to nuchal line.
He has further deposed that in his opinion, the said injuries were fresh and antemortem in nature and has opined that the death of the deceased was due to cranio- cerabral injuries as a consequence of blunt force trauma 13 Crl.A. No.1102/2013 and has issued post mortem report as per Ex.P-8. He has further deposed that by seeing the weapon, a hammer which is already marked as M.O.5 and if a person assaulted with the hammer, the injuries detailed by him in Exs.P-7 & 8 may be caused. During the course of cross- examination of this witness at Para-23, it has been elicited that the Investigating Officer has not produced before him the weapon said to have been used for assault. When it has been suggested that, if a person falls from a height the injuries detailed by him in Exs.P-7 and 8 may be caused, the said suggestion has been denied. It is further elicited that these injuries may be caused if a person comes in contact with a weapon M.O.No.5 with force.
Even as could be seen from the evidence of PW-2, who is an enclosed Mahazar Pancha to Ex.P-1, he has deposed with regard to the injuries found over the body of the deceased so also PW-3. While going through the evidence of all these witnesses, it clearly goes to show that the death of Hemanth Kumar Mandal and Manik Konai is homicidal death. This evidence of prosecution establishes the fact of homicidal death of both the persons. 14 Crl.A. No.1102/2013
11. The next contention of the learned counsel for the accused/appellant is that though the prosecution has examined PW-15 as an eye witness, the presence of the said witness itself is doubtful because of the inconsistencies in his evidence. For the purpose of brevity, we place it on record, the evidence of PW-15. PW-15 in his evidence has deposed that he knows the accused who is present before the Court and PWs.10 to 14, deceased Manik Konai and Hemanth Kumar Mandal were working together in the same Company and Hemanth Kumar Mandal told the accused that he will pay the said amount later and in that context, that there was a galata and the said galata has been seen by Manik Konai and himself and the said Hemanth Kumar Mandal told that he will send the said amount when he go to Satna and the witness has also deposed that himself and Manik Konai told that Hemanth Kumar Mandal will send the amount later. He has further deposed that on that night, himself, Manik Konai slept in one room, accused and Hemanth Kumar Mandal slept in another room and next day morning at about 4-4.30 a.m., the accused came and tapped the door and when he 15 Crl.A. No.1102/2013 opened the door, at that time, the accused assaulted on him with the bamboo stick and the said bamboo stick broke into pieces and he identified them as M.O.Nos.2 to 4 and immediately after the assault, he came out of the room and then noticed the dead body of Hemanth Kumar Mandal and he also noticed injuries on his forehead and head as the accused has assaulted with bamboo stick on his head, the blood was oozing and the blood was also oozing from the head of Hemanth Kumar Mandal. He has further deposed that thereafter the accused went inside the room where he was sleeping and with the help of iron hammer assaulted Manik Konai and he saw the same in the electric light and he made a hue and cry and by hearing the same, PW-12 Abhijith Mukerji, PW-14 Kishore Sha, PW-13 Agardath Day and two others came and they tied the accused to the gate. At that time also, the accused was holding M.O.5 in his hand and at the time of tying the hands of the accused, he throw the same and the rope is marked as M.O.-1. He has further deposed that later with the office phone, he called PW-10 Debasis Maithi and explained about the incident. At about 5.00 a.m. PW-10 as 16 Crl.A. No.1102/2013 well as the police also came to the place of incident. After examining the dead body, they have drawn the Mahazar and they also seized the said bamboo sticks, the iron hammer and the rope. During the course of cross- examination, it has been elicited that on that day, the accused was having night duty and at the time when the accused tapped the door, it was morning 4.30 am., and when he opened the door, the accused assaulted on his head. Immediately, he made a hue and cry, then all have come there. He has further deposed that the accused assaulted once on his head and he assaulted with the bamboo stick and immediately after the assault, the said bamboo stick broken into pieces. He has further deposed that when the accused assaulted on his head, his head was paining and he did not fall on the ground and immediately after the assault, the accused ran away.
12. At para-16, when it has been suggested to the witness that there was a galata between himself and the deceased, the same has been denied and he himself has assaulted with M.O.5 - the iron hammer on Hemanth 17 Crl.A. No.1102/2013 Kumar Mandal and Manik Konai and a false case has been registered against the accused. The said suggestion has been denied by this witness. Though during the course of arguments, the learned counsel for the accused submitted that as per the case of the prosecution, the accused has assaulted Hemanth Kumar Mandal and caused the death and if he really assaulted, there must be hue and cry and the same should have been heard by the persons who are staying nearby. And when the accused tapped the door and PW-15 opened the door, at that time also, Manik Konai who was sleeping inside, has also not woke up and opened the door and that itself going to create doubt that PW-15 was present at the time of alleged incident? But when we carefully peruse the evidence of PW-15, it clearly goes to show that he was present at the time of alleged incident and in the said incident itself, he sustained the injuries.
13. It is well established principle of law that testimony of injured witnesses has to be given a greater weight and much weight has to be given to their presence 18 Crl.A. No.1102/2013 at the time of alleged place of occurrence and it cannot be doubted. It is also now well settled that it is not likely to spare the real assailant and implicate the innocent person in order to discard the evidence of the injured witnesses. There must be cogent evidence before the Court, then only the testimony of the injured witnesses can be discarded. In that light, defence has not brought any material and as such, the evidence of the injured witnesses is acceptable and reliable. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Chandrasekar & another Vs. State reported in (2017)13 SCC 585, wherein at paragraph-10, it is observed thus:-
"10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v. State of U.P. observing as follows: (SCC p 302.para 28) "28. Where a witness to the occurrence has himself been injured in the incident, 19 Crl.A. No.1102/2013 the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone."....' The aforesaid principle of law has been held by the Hon'ble Apex Court in the case Mohd. Ishaque & others Vs. State of West Bengal & others, reported in (2013) 14 SCC 581 at Head Note-A, which reads as under:-
"A. Criminal Trial - Witnesses - Injured witness - Credibility - Criteria of appreciation
- PWs.1, 2 and 4 in the present case sustained serious injuries and their evidence was believed by the court - Testimony of injured witnesses is entitled to great weight - It is unlikely that they would spare the real culprit and implicate an innocent person - Of course, there is no immutable rule of appreciation of evidence that evidence of injured witnesses should be mechanically accepted, it should also be in consonance with probabilities - Whether witnesses are interested persons and whether they had 20 Crl.A. No.1102/2013 deposed out of some motive cannot be sole criterion for judging credibility of a witness - Main criterion would be whether their physical presence at the place of occurrence was possible and probable."
14. By keeping in view the above said proposition of law that the evidence of PW-15 so which has been produced before the Court, reposes the confidence of this Court also that at the time of alleged incident, he was present and he has suffered with injuries and he has also witnessed the accused assaulting the deceased Hemanth Kumar Mandal and Manik Konai. Even the accused has not made out any case, so as to how and for what reason the accused has been falsely implicated in this case.
15. Per contra, the prosecution has produced the evidence to show that earlier to the incident, when Hemanth Kumar Mandal was due an amount of Rs.500/- to the accused and when accused demanded to return the amount as Hemanth Kumar Mandal has been transferred to Satna and he may not return the amount and in that 21 Crl.A. No.1102/2013 regard there was a galata and the said galata has been specified by PW-15 and Manik Konai so in that light, even the prosecution has proved the motive involved therein in this behalf.
16. Be that as it may, when we peruse the evidence of other witnesses, PW-10 who has filed the complaint as per Ex.P-5 in his evidence, has deposed that PW-15 informed over the phone about the alleged incident and immediately thereafter, he came and there he noticed the dead bodies of Hemanth Kumar Mandal and Manik Konai and also that the injuries suffered by PW-15 and there he also noticed that the accused has already been tied to the gate with rope and thereafter, immediately he went and filed the complaint as per Ex.P-5. Thereafter, the police also came there and they have also drawn the Inquest /Spot Mahazar as per Ex.P-1 and they have also seized the rope and the iron hammer at the place of incident and even the other witnesses who were also present i.e., PW-12 Abhijith Mukerji, PW-13 Agardat Day, PW-14 Kishore Sha have also deposed that they were working by the side of 22 Crl.A. No.1102/2013 the place of the incident and immediately after hearing the galata, they came out and saw the accused standing by holding the hammer and PW-15 made a hue and cry and requested them to hold the accused and tie him to the gate. Even they have also specifically deposed with regard to the earlier incident which has taken place on the previous day. When the evidence which has been produced in this behalf is corroborating with each other and the said evidence is worth believable and reliable, then, under such circumstances, the said evidence is acceptable and reliable. Even as could be seen from the records, immediately after the incident, the accused has been apprehended and tied to the gate and hammer was also there with the accused. Even the seized M.O.5 - the iron hammer and bamboo sticks which are marked at M.Os.2 to 4, when they have been sent for chemical examination and the report has been obtained as per Ex.P-10 and Serology Expert Report at Ex.P.11 and then the said articles disclose the fact that they contain human blood. When that evidence is also before the Court, it also 23 Crl.A. No.1102/2013 corroborate with the evidence of PW-15 and other witnesses.
17. Even as could be seen from the evidence of PW.7, the doctor who examined PW-15, in his evidence, has deposed that on 03.09.2009 at about 1.00 p.m., he examined one Prahlad Sha who was brought to the Hospital with the history of certain injuries said to have been sustained in an alleged assault on 03.09.2009 at about 4.30 a.m., at Ramalkatte Pump House and after examination, he found that there is a lacerated wound of 1" size on left parietal region of scalp and he is of the opinion that the said injury is simple in nature and issued his report. Even during the course of Cross-Examination, nothing has been elicited so as to discard the evidence of this witness. When PW-15 immediately after the incident went to the hospital, even the history also disclose the fact that he has suffered with the injuries in the alleged incident. Then under such circumstances, it cannot be considered that the presence of PW-15 was not there at the time of alleged incident. No doubt there are small 24 Crl.A. No.1102/2013 inconsistencies and irregularities in the case of the prosecution. But, the minor discrepancies which have been brought to our notice during the course of arguments by the learned counsel for the accused/appellant, but they are very minor and they will not destroy the evidence so which has been produced before the Court. No doubt when the accused has assaulted two persons and has caused the double murder and also assaulted PW-15, then, under such circumstances there will be minor discrepancies. In that light, it cannot be held that no such incident has taken place as alleged. Even it is well settled principle of law that testimony of injured witness has to be given a greater weight and much weight has to be given to their presence at the time of alleged place of occurrence and it cannot be doubted. Now it is also well settled that it is not likely to spare the real assailant and implicate the innocent person in order to discard the evidence of injured witness. There must be cogent evidence before the Court, then only the testimony of the injured witness can be discarded. In that light, defence has not brought any material and as such the evidence of PW.15 - the injured witness is reliable 25 Crl.A. No.1102/2013 and acceptable. This proposition of law has been laid down in the Hon'ble Apex court in the case of Chandrashekar and another Vs. State (quoted Supra).
18. Keeping in view the above principles of law, facts and circumstances, we are of the considered opinion that the accused /appellant has not made out any good grounds so as to interfere with the judgment of the Trial Court.
19. We have perused the judgment of the Trial Court carefully and cautiously alongwith the evidence and materials placed on record. The Trial Court after considering all the materials placed on record, has rightly come to the right conclusion and has convicted the accused/appellant, there is no irregularity or illegality while coming to the said conclusion. The Trial Court after considering the evidence, has come to the conclusion which is probable and just.
26Crl.A. No.1102/2013
20. Under such circumstances, there is no question of interfering with the said Order. The appeal is devoid of merits and as such the same is liable to be dismissed and accordingly the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE SNC* CT: NR