Karnataka High Court
Shivakumar S/O Sabanna Bhovi vs The State Of Karnataka on 20 January, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL APPEAL NO.3543/2011
BETWEEN:
Shivakumar
S/o.Sabanna Bhovi
Aged 28 years, Occ: Agriculture
R/o.Vantikaman Area, Chitapur
Chitapur Taluk, Gulbarga Dist.
... Appellant
(By Sri R.K.Hiremath & Chaitanyakumar, Advs.,)
AND:
The State of Karnataka
Trhough Chitapur Police Station
Rep.by SPP
High Court of Karnataka
Circuit Bench, Gulbarga
...Respondent
(By Sri Sheshadri M.Jaishankar, HCGP)
This appeal is filed under Section 374(2) of Cr.P.C.
praying to set aside the judgment dated 22.1.2011
passed in SC.No.134/2010 on the file of the I Additional
Sessions Judge at Gulbarga convicting the appellant-
accused for the offence punishable under Section 304
Part-I of IPC and sentenced to undergo RI for a period of
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three years and to pay fine of Rs.10,000/- in default to
undergo SI for a period of one year for the offence
punishable under Section 304 Part-I of IPC.
This appeal having been heard, reserved for
judgment and coming on for pronouncement of
judgment, this day the Court delivered the following:-
JUDGMENT
This appeal is preferred by the accused assailing the judgment dated 22.1.2011 passed by the First Additional District and Sessions Judge, Gulbarga in SC.134/2010 for having convicted him for the offence punishable under Section 304 Part-I of IPC.
2. The brief factual matrix of the case as per the prosecution is that the deceased was having illicit relationship with Lakshmi, the wife of the accused. 10 to 11 months prior to the alleged incident, deceased had taken the wife of the accused to Bangalore. Thereafter, on 4.1.2010 at about 9.30 a.m. when deceased was coming in front of General Store near Ontikaman, Chitapur accused also came there and assaulted the -3- deceased with stick on his head and other parts of the body thereby caused grievous injuries. Immediately thereafter, the injured was taken to the hospital, wherein he was declared dead. In that light, a complaint came to be filed against the accused. After the complaint, a case was registered and after completion of investigation, charge sheet came to be filed against the accused. The Committal Court after following the procedure committed the case to the Court of Sessions. The Sessions Court took the cognizance and secured the presence of the accused. After hearing the accused and his counsel, charge came to be framed. Accused denied the charge and he claimed to be tried. As such, the trial was fixed.
3. In order to prove its case, the prosecution in all has examined 21 witnesses and got marked Exs.P1 to P21 and MO.Nos.1 to 9. After closure of the prosecution evidence, the statement of the accused was recorded -4- under Section 313 of Cr.P.C. by putting incriminating material against him. Accused denied the same. He did not lead any evidence on his behalf. After evaluation of the material on record and after hearing both the parties, the impugned judgment came to be passed convicting the accused for the aforesaid offence.
4. The learned counsel appearing for the accused- appellant has contended that all the witnesses who have been examined before the Court are relatives of the complainant. No independent witnesses were examined deliberately by the prosecution in order to suppress the real facts of the case. He has also contended that the entire prosecution theory is created and concocted. He has further contended that the deceased was having bad character and was having many enemies in the said village, somebody might have assaulted him. Only with an intention to take grudge against the accused, he has been falsely implicated in the crime. It is his further -5- contention that if at all the accused has committed the alleged offence, it is only because of sudden and grave provocation because of the act of the accused who had taken his wife to Bangalore. On these grounds, he prayed for allowing the appeal by setting aside the impugned judgment.
5. Per contra, the learned HCGP has supported the impugned judgment contending that there are eye witnesses to the incident who have seen that the accused has caused grievous injuries to the deceased by assaulting him with club and as a result of which, the deceased succumbed to the injuries. It is contended that in order to take revenge against the deceased as he was having illicit relationship with his wife and had taken her to Bangalore in that context, he has assaulted him. It clearly goes to show the motive of the accused that only with an intention to kill the deceased the accused has assaulted the deceased on his head. It is -6- further contended that the prosecution has produced cogent and reliable evidence to show that it is the accused who has committed the alleged offence and none else. It is also contended that even during the course of cross-examination of the material witnesses, nothing has been elicited so as to discard their evidence. Further, the principles of sudden and grave provocation would not attract to the case on hand. On these grounds, he prayed for dismissal of the appeal.
6. PW.1 is the relative of the deceased, who filed the complaint as per Ex.P1. She is an eye witness to the incident in question. She comes to the place of incident after hearing that the deceased was being assaulted by the accused. She also tells the presence of other witnesses and has also seen the accused running away with club after he assaulted the deceased.
PW.2 is the sister of the deceased who comes to the spot along with other witnesses after hearing that -7- the deceased was being assaulted by the accused. She has also seen the accused running away with club after the incident in question.
PWs.3 to 6 are also eye witnesses to the incident in question who after hearing the galata, came to the spot and saw the accused assaulting the deceased with club and thereafter accused running away along with the said club.
PW.7 is also an eye witness to the incident in question. But he has not supported the case of the prosecution and was treated as hostile.
PW.8 is the another witness who on receipt of the phone call about the galata and the assault, went to the hospital and saw the injuries sustained by the deceased.
PW.9 is the panch witness to inquest mahazar at Ex.P4.
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PW.10 is an Assistant Engineer, PWD, who has prepared sketch of scene of offence as per Ex.P5.
PW.11 is also a witness to the inquest mahazar at Ex.P4. He is also a panch witness to the seizure mahazar at Ex.P6 under which the clothes of the deceased were seized.
PW.12 is the Police Constable who went to the spot immediately after coming to know about the said galata and he saw the injured and made arrangements to take the injured to the hospital in a private vehicle. After postmortem examination, he handed over the body to the relatives of the deceased and thereafter he brought the clothes of the deceased and produced before PW.20 by giving a report.
PW.13 is a Lady Police Constable who carried the FIR to the jurisdictional Court.
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PW.14 is a Police Constable who carried the seized articles for chemical examination.
PWs.15 and 18 are the panch witnesses to the seizure mahazar at Ex.P11 under which MO.No.1, the club was seized.
PW.16 is the doctor who conducted autopsy over the dead body of the deceased and issued the postmortem report as per Ex.P12.
PW.17 is the driver of the private vehicle in which he took the injured to the hospital as per the instructions of the police.
PW.19 is the PSI who after receipt of the information about galata, sent Police Constables to the spot. Thereafter he received the complaint and after registration of the case, has issued the FIR.
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PW.20 is the CPI who took further investigation of the case and after investigation he filed charge sheet against the accused.
PW.21 is the Officer of the Forensic Science Laboratory, who issued FSL report as per Ex.P21.
7. Keeping in view the above submissions and the evidence on record, let me consider in detail whether the impugned order is justifiable in law. In the case on hand, PWs.1 to 6 are the eye witnesses to the alleged incident. They have consistently deposed that the deceased has eloped the wife of the accused about 10 to 11 months prior to the incident in question and with that motive on the alleged date of incident, when the accused saw the deceased going near the place of incident, he assaulted the deceased with club on his head and other parts of the body and ultimately the deceased has succumbed to the said injuries in the
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hospital. During the course of cross-examination of these witnesses, nothing has been elicited so as to discard their evidence.
8. Even if we peruse the evidence of the doctor- PW.16 who has conducted autopsy over the dead body of the deceased, he has deposed that as many as six injuries were found over the forehead, occipital area and other parts of the body. He has opined that the death was due to sub-dual hemorrhage due to head injuries and he has issued the postmortem report as per Ex.P12. Taking into consideration all these aspects, it indicates that it is a homicidal death because of the injuries caused by the accused and even the said injuries mentioned in Exs.P12-postmortem report and P4- inquest mahazar also correspond with the evidence of the eye witnesses and PW.16. In that light, it can safely be said that the prosecution has clearly established that on 4.1.2010, accused intentionally assaulted the
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deceased with club and on his head and other parts of the body thereby caused the death of the deceased, which is punishable under Section 302 of IPC.
9. Though it is the contention of the learned counsel appearing on behalf of the appellant that the witnesses who have been examined before the trial Court are interested witnesses, merely because the witnesses are interested and relatives of the deceased, such evidence cannot be discarded and the Court should not leave the real culprits who were involved in a heinous offence like murder. If such evidence is scrutinized carefully and cautiously and if nothing has been elicited to discard their evidence by the defence, so also if the evidence reposes the confidence to the Court with other corroborative evidence, then under such circumstances, the said evidence can be taken into consideration to substantiate the case of the prosecution. Be that as it may, whenever the alleged
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incident like the one which has taken place in the present case, no other third person will be interested to involve himself into such dispute so as to create enmity between the two groups or two families, that too when they are staying in a small locality. Apart from this, as could be seen from the records, the alleged incident has taken place near the house of the relatives of the deceased at about 9.30 a.m., then under such circumstances, it is the relatives who are there in the nearby house, they will be the natural witnesses to witness the alleged crime. Leave apart this, consistently even all the witnesses have stated about the assault including PW.12, the Police Constable who went to the spot immediately after coming to know about the galata and while taking the injured PW.2 and other witnesses have also accompanied the deceased to the hospital. Keeping in view all these aspects, the presence of the said witnesses at the place of incident cannot be disbelieved. Hence, the contention taken up by the
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learned counsel for the appellant also cannot be acceptable in law.
10. In so far as the contention of the learned counsel for the appellant that the alleged incident has taken place as a result of sudden and grave provocation as the character of the deceased was not good and the deceased was an eye on his wife and in that context, the alleged incident has taken place and lenient view may be taken in this behalf is concerned, as could be seen from the complaint at Ex.P1, it is clear that 10 to 11 months prior to the alleged incident, the deceased had taken the wife of the accused to Bangalore and therefore deceased was also sent to jail and thereafter the accused had spent some more time. In the circumstances stated above, the act of the accused will not amount to sudden and grave provocation and it was not spontaneous. When there is a long gap and thereafter the accused has assaulted the deceased with
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an intention to cause the death, then under such circumstances, particular defence is not available to the accused.
11. Leave apart this, the accused-appellant has taken inconsistent stand, at one stretch he denies his act in toto and in another breath he contends that the act which is said to have been committed by him is because of sudden and grave provocation, which is contrary to law. As such the said contention of the accused-appellant is not sustainable in law. Taking into consideration above said facts and circumstances of the case, I am of the considered opinion that the accused-appellant has not made out any good ground so as to interfere with the impugned judgment.
12. Before parting I want to mention that even though the learned District and Sessions Judge after considering all the material on record has come to the conclusion that the alleged offence falls under Section
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304 Part-I of IPC, before coming to the said conclusion, he has not elaborately discussed what are the circumstances and conditions which are to be present at the time of drawing the said inference. Merely because the accused has used the club for commission of offence, it will not change the gravity of the offence committed by the accused. Leave apart this, for having come to the conclusion that the accused has committed an offence punishable under Section 304 Part-I of IPC, while imposing the sentence, the said sentence is not in proportionate to the alleged crime.
13. The Apex Court in the case of Siddarama & others Vs. State of Karnataka, reported in AIR 2006 SC 3265, and in the case of Akram Khan Vs. State of West Bengal, reported in 2012(1) Crimes 5 (SC), has laid down that it is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such
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punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime.
The trial Court has not kept into the aforesaid aspects while awarding the sentence.
14. Keeping in view the ratio laid down in the aforesaid decisions, the learned Sessions Judge ought to have imposed proportionate sentence on the accused. In the instant case unfortunately the State has not preferred any appeal challenging the proportion of the sentence. In that light, the impugned judgment has to be confirmed and the same is confirmed.
Accordingly, the appeal stands dismissed.
Sd/-
JUDGE *ck/-