Karnataka High Court
Manikappa S/O Ashappa Kalal Anr vs The State Of Karnataka on 20 March, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 20TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
CRIMINAL APPEAL No. 3651/2010
BETWEEN
1. MANIKAPPA S/O ASHAPPA
KALAL, AGE: 29 YEARS
OCC: AGRICULTURE
2. SABAYYA S/O ASHAPPA
KALAL, AGE: 35 YEARS
OCC:AGRICULTURE
BOTH ARE R/O KANAGADDA
TQ.SEDAM, DIST.GULBARGA
....APPELLANTS
(BY SRI.ISHWAR RAJ S. CHOWDAPUR, ADV)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
CIRCUIT BENCH, GULBARGA
....RESPONDENT
(BY SRI.S.S.ASPALLI, HCGP)
CRL.A. FILED U/S 374 (2) OF CR.P.C BY THE ADVOCATE
FOR THE APPELLANTS PRAYING THAT THIS HON'BLE COURT MAY
BE PLEASED TO ALLOW THE APPEAL AND SET ASIDE THE ORDER
OF CONVICTION AND SET ASIDE THE ORDER OF CONVICTION
AND SENTENCE INCLUDING THE FINE AMOUNT DATED
2
24.07.2010 AND CONVICTING THE APPELLANTS/ ACCUSED FOR
THE OFFENCE P/U/S 509, 304, PART II, 504, 323 AND 355 SEC
34 OF IPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING
JUDGMENT
This appeal is by the convicted persons against the judgment dated 24.7.2010 passed in S.C.7/10 convicting them for the offences punishable under Sections 304-II, 504, 323 and 355 read with Section 34, I.P.C.
2. Heard Sri Ishwarraj Chowdapur, learned counsel for the appellants and Sri S.S.Aspalli, learned HCGP for the State. Perused records which reveal:
a) One Bhimshappa lodged report on 25.5.2009 before Mudhol police station alleging that on 24.5.2009 when he was grazing cows and returning home, his wife, PW10-Nagamma informed him that the 1st appelant-
Manikappa had tried to seduce her to sleep with him, but she refused and resisted his attempts. She openly declared 1st appellant wanted to have illicit sexual intimacy with her 3 which upset the complainant, who is examined before the trial court as PW9.
b) Thus PW9 went in search of the 1st accused to enquire about his vulgar conduct and found him in a hotel run by Veeresh along with his brother-Sabaiah. Complainant was accompanied by PW10-Nagamma and when they both questioned, 1st accused abused them and indulged in assault. Hearing the noise, Gangamma (mother of the complainant) rushed to the spot and pleaded with the accused not to harm her son, and it appears she even held their hand. The 1st accused is alleged to have fisted her on the temporal region consequent to which she fell and died instantly.
c) Report was registered and both the appellants came to be arrested. During investigation, the investigating officer recorded the statements of Nagappa, Ningappa and Krishnappa, all of them revealed they witnessed the incident and overt acts of the appellants. Thus charge sheet was 4 filed against them indicting them for the offences punishable under Sections 509, 302, 504, 323, 355 read with Section 34, I.P.C. and put to trial in S.C.7/10.
d) Accused on being summoned pleaded not guilty necessitating trial in which prosecution examined in all 20 witnesses and placed reliance on 18 documents, while the 1st accused tendered evidence as DW1 and relied on one document which was marked as Ex.D1. The wearing apparel of the deceased were marked as M.Os.1 to 3.
e) Learned trial judge analyzing the evidence opined it inculpates the appellants as the authors of injury caused to the person of Gangamma which resulted in her death. It also recorded a finding that the evidence indicts the appellants for causing injuries to two persons who were at the spot, but he found evidence fell short of proof to establish the charge under Section 302, I.P.C. and consequently recorded conviction for the offence punishable under Sections 509, 304-II, 504, 323 and 325, I.P.C. 5
f) Assailing it they are in appeal.
3. Learned counsel for the appellants, Mr.Ishwarraj Chowdapur would seriously assail the finding of the learned trial judge and in this regard has referred to the evidence of PW9-Bhimshappa (complainant), his wife-Nagamma (PW10), Veeresh (PW13) as also other witnesses to show that the incident did not occur in the manner alleged by the prosecution. He would submit, spot mahazar-Ex.P2 depicts the scene of occurrence where Gangamma was found dead. It is far away from the hotel run by Veeresh. His contention is, Gangamma was in a drunken state and had fallen suffering injuries resulting in her death.
4. Referring to the medical evidence of Dr.Shivanand (PW18), he would submit the doctor has found hemorrhage on the temporal region and near the eye which could not have been caused by fisting, unless an object is used. He compares the doctor's finding with the evidence of PW1- Bhimshappa, PW4-Nagappa and other eyewitnesses to show 6 they have themselves stated 1st accused only fisted once. If that is to be believed, the injury found in the post mortem report would not have been caused. On this basis, he submits hamorrhage or haemotoma found on the temporal region was due to fall on a hard surface like road, and thus disproves prosecution case that her death was the result of assault by the 1st accused.
5. As regards the 2nd accused is concerned, he submits prosecution itself has alleged he merely caught hold of Gangamma to facilitate the blow being tendered by the 1st accused and therefore, he cannot be found guilty of the offence under Section 304-II, I.P.C. or any other offence charged. He read out to me the statements of eyewitnesses including Veeresh-owner of the hotel, and drew my attention to the finding recorded by the learned trial judge in paragraph 61 of the judgment to show neither motive nor intention is attributed to the accused in causing injuries to Gangamma and therefore, conviction is bad in law. 7
6. Alternatively he would submit, at the most it may show in the quarrel between the family members of Gangamma and the accused, she suffered injuries which were simple in nature and hence, they cannot be charged with any other charge.
7. In negation of all these grounds, learned HCGP, Sri S.S.Aspalli has reiterated the charge against them and has referred to the evidence of PW9-complainant which reveals that Nagamma-PW10 had gone along with her husband to question why the 1st accused had indulged in vulgarity, compelling her to sleep with him for illicit intercourse. He would submit, not only the victim-Gangamma but other two witnesses have suffered injuries which shows there was violent conduct of the accused and the consequence of their act has to be viewed seriously. He justifies conviction for the offences referred to above and seeks dismissal of the appeal.
8
8. Keeping in mind what is urged, I have examined the records in supplementation thereto which shows there is no dispute that the incident occurred on 24.5.2009 at 7.30 p.m. and that was near Veeresh Hotel. Ex.P2 is the spot Panchnama supported by two witnesses, which shows Gangamma was found 50' away from the hotel. It has been spoken to by PW9-complainant. Seizure of clothes of the deceased is recorded in the Panchnama and as could be seen, prosecution case rests firstly on the evidence of PW9- complainant, PW10-Nagamma, PW11-Sayappa (complainant's father) and PW3-Mogalappa (complainant's brother).
9. PW11 has deposed that he along with his wife (deceased Gangamma) saw the quarrel and rushed to the place when he saw the 1st accused in action assaulting his son-PW9 and daughter-in-law-PW10 with a chappal and when Gangamma tried to rescue them, 1st accused fisted a blow on her. His evidence would show, complainant had spat on the face of 1st accused during the quarrel and that 9 turned the incident more violent. PW12-Narsappa is another witness to claims to have seen the incident and speaks of the assault by the accused injuring the complainant, his wife and Gangamma. His evidence spells out the sequence of events which resulted in Gangamma falling to the ground after suffering fist blow from the 1st accused. In cross-examination, 1st accused tried to elicit that he (PW12 is the brother of Gangamma and therefore was speaking falsity.
10. PW13-Veeresh is the owner of the hotel where the incident commenced. He has spoken to the presence of accused nos.1 and 2 and arrival of complainant with his wife. However, he did not support prosecution case and therefore, his statement before the investigating officer about overt acts of the accused was marked as contradictory version, at Exs.P9 and P10. PW14-Krishnappa is another witness who fell in line with PW12 and speaks of the incident and nothing has been salvaged from his cross- examination.
10
11. PW4-Nagappa though cited by prosecution to speak to the overt acts of the accused, showed open adverse animus and did not make any statement indicting the accused resulting in marking his statement as contradiction, at Exs.P5 and P6.
12. Be that as it may, though all witnesses of the prosecution did not support prosecution case and retracted from the oral statements given before the investigating officer, the statements of PW9, PW10, PW11 and PW12 has stood the test of cross-examination and proves corroborative evidence indicting the 1st appellant as the author of injuries caused to the person of Gangamma which, unfortunately, accounted for her death.
13. So far as the 2nd accused is concerned, his role is assaulting the complainant and other witnesses, but holding Gangamma in the grip which facilitated 1st accused to cause injury. It is a settled principle that it is not the quantum which matters, but the quality of evidence. Though many of 11 the witnesses have turned hostile and prosecution could not secure any support from their cross-examination, the consistent statements of PW9, PW10 and PW11 and other witnesses has established the nexus between the overt acts of the 1st accused and consequent death of Gangamma. Similar injury to the person of PW9 and PW10 has also been established.
14. The question now is, what is the offence the 1st accused has committed and whether the 2nd accused could be convicted for the offence alleged against the 1st accused, as both have been roped in with the aid of Section 34, I.P.C. As regards assault on the other persons is concerned, learned trial judge has convicted them for the offence punishable under Section 323, I.P.C. and for causing threat, they have been charged with Section 506, I.P.C.
15. From the evidence referred to above, it admits of no doubt that amongst accused nos.1 and 2, it is only the 1st 12 accused who tendered blow to Gangamma. Whether he could do so only with the help of the 2nd accused who held Gangamma in the grip is not clearly spelled out by the prosecution. Therefore, the role played by the 2nd accused does not show he had shared common intention with the 1st accused to cause injury to Gangamma. May be he held her in a tight grip. From the eyewitness's account, it is evident the incident has occurred at the spur of the moment when PW9 and PW10 questioned him about his carnal attitude in demanding PW10 to have illicit intercourse with him. Therefore, it is difficult to accept 2nd accused would have shared common intention either to kill or to cause injury to Gangamma which ultimately proved fatal. In this view, each one has to answer for the act done.
16. The 1st accused has no escape but to answer the consequence of his act which resulted in the death of Gangamma. No doubt no object has been used. The post mortem report reveals two contusion injuries on the right side of the head which were ante-mortem in nature and 13 could have been caused by fisting. According to h im death is due to intra-cranial haemorrhage. These injuries found by the doctor show the brutality in which the blow was tendered. He knew he was directing it towards a woman above 70 years, and cannot say he had no knowledge that in the normal circumstances such injury would prove fatal. Of course the intention to commit murder is totally absent because she was not a party to the earlier incident and had come to the spot only to save her son-PW9. In this view, learned trial judge was right in holding 1st appellant would not have had the motive to kill Gangamma and therefore, it is not a case of deliberate murder.
17. But as referred to above, knowledge can easily be imputed to him because Gangamma in her appearance itself was old and fragile; he has directed his blow to the vital part of the body, i.e. face, near the temporal region. As expected, it had a devastating effect causing haemotoma and haemorrhage causing instantaneous death. Therefore, conviction of the 1st accused for the offence punishable 14 under Section 304-II, I.P.C. is well decided conviction recorded by the trial court and needs no interference.
18. So far as the 2nd appellant is concerned, as I have already observed, merely because both were present and took part in the incident, is not enough to pronounce him also guilty using Section 34, I.P.C. because the main ingredient of Section 34 is proof regarding sharing of common intention. That being absent and as nothing is elicited by the prosecution from eyewitnesses that they had shared common intention, the 2nd appellant has to be exculpated from the said charge. In the circumstances, the finding of the trial court convicting the 1st appellant for the offence under Section 304-II, I.P.C. is confirmed, while conviction of the 2nd appellant for the said offence is hereby set aside.
19. So far as the offence punishable under Section 323, I.P.C. is concerned, it needs no interference because it is based on the evidence on record, but I find no material so 15 far as Section 506, I.P.C. for which the trial court has recorded conviction. In the resultant position, the conviction recorded by the trial court needs modification.
20. Conviction of the 1st appellant for the offence punishable under Section 304-II, I.P.C. is affirmed. Similarly his conviction for the offence punishable under Section 323, I.P.C. is affirmed. But his conviction for the offences punishable under Sections 504, 506 and 355, is set aside for want of sufficient material. In the result, he has to face punishment only for the offences punishable under Sections 304 and 323, I.P.C. while the 2nd appellant has to face the charge under Section 323, I.P.C. as he is said to have caused injury to two witnesses referred to above.
21. Learned counsel, Sri Chowdapur would submit, appellants are both young and have family and it will be difficult for them to take care of their personal affairs if they are sent to jail because of their bad economic condition. Therefore, he seeks liberal sentence. However, learned 16 HCGP submits no leniency is justified as they have caused the death of an innocent woman who fell at their feet to save her son, but her pleas were discarded.
22. Keeping in mind the submission of both sides, we have to now decide quantum. The trial court has sentenced the appellants to 7 years imprisonment for the offence under Section 304-II, I.P.C. and a fine of Rs.5,000/- each. For the offence punishable under Section 323, I.P.C., they have been sentenced to 6 months imprisonment and a fine of Rs.1,000/- each.
23. In view of acquittal of the 2nd appellant for the offence under Section 304-II, I.P.C. and taking into consideration the circumstances in which the incident occurred and the fact that the accused were not armed and they reacted only when the complainant questioned 1st appellant's behaviour, imprisonment for a period of 7 years appears to be harsh and it is reduced to two years with a fine of Rs.5,000/- each. So far as the offence punishable 17 under Section 323, I.P.C. is concerned, the order regarding sentence of imprisonment imposed upon him is set aside. Instead, the amount of fine fixed at Rs.1,000/- is enhanced to Rs.5,000/-, in default to undergo simple imprisonment for 3 months. The sentence of imprisonment for the offence punishable under Section 323, I.P.C. on the 2nd appellant is set aside. He is sentenced to pay a fine of Rs.5,000/- with default. This shall be the only modification to the order regarding sentence. The appeal succeeds in part in terms of this order.
Sd/-
JUDGE vgh*