Karnataka High Court
Tukaram Mallappa Kavadi vs The State Of Karnataka on 28 March, 2008
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
('DI I III'\ fllnd IITIIFIK
L§¥¥¥
IN THE HIGH COURT OF KARNATAKA AT
DATED THIS THE 28"" DAY or MARCH-'.<':2:"00EulT «
PRESENT *W-. VF % %
THE HON'BLE MR.JUSTICE
ma HON-' BLE r-13.. JUs'1txc.=?;"-.=-rg."sFA. £--*m"*£Ha?'u"RE
CRIMINAL APPEAL'N0V.:;21§:i1f:%2(jO5,. cc)
BETWEEN
1 TUKARAH MALLr'§PPA._V--E§A'aI2&i§I ~
JTLGE 57
R/0"PcNJU"1.'PLGE::.; INDI TABUK
BIJAPURA'i§IVSf1'RIC.'iI{"~«.Vv__
2 sxmw V7 *1'
AGE _';'E'.ARS_ crc,.:.AGRIcaLTuRIsT
12;/0 _ANJU'rAGI" INDI TALUK
,_je'1J§P!J3 DISTRICT . . . APPELLANTS
my .~1s--§._ v1V*JI:$:~1'.HA R NAIK, ADV.)
'THE STATE bi? KARNATAIOX
'--..REPRESEN.TED BY ITS
$TA'1'EZ«--._EUBLIC mosncuwon
« HIGH. r::ouR'r or KARNATAKA
-_r'xni'I:'I'l|1'1\l")l:'I gcn nrn an run"
'lJfl1\';Ufl.I.|Ul'\.l:n'JOU UUJ. . . . l\:nDl.'\JIVllJl:mu.
Sri.G.BHAVANI amen, S-PP-II)
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THIS CRIMINAL APPEAL IS FILED U/S
BY THE ADVOCATE FOR THE APPELusN*rs~ACC"uéED"»
AGAINST THE JUDGEMENT DT.12_;-.9+__O5 '--"PAss§ED""VE'_T,T-REV
IV ADDL.s.J., BIJAPUR, IN s(C.NO,A56/.99AeC--ONT;I:§;T::;1~rG
THE RPPELLRNTS-RC"U""D FIR THI'»0FFENC7S' PfUfSS
.4 A '7 '30') '2: rm'? '-2921 D /m Q/I T Dirt turn". Ei«:"4i§iim:*sN1n'rxrr*_'
"S1 1' -.l\/U f\J&'I J\,f VI 51"! J-l.\-I-. ; D-Jl l'I-|.l.--ll.'\..lLl'l\J
THEM TO LJNDERGO IMpRIsoNMiENir.__E"'OR LiTE__AN,D TO PAY
FINE OE' RS.5000/- EACH,_ "TOE.EA"uN%DERGO R.I. FOR
6 MONTHS FOR THE OE'EENCE_ .25/tE}fV}S.--'«..é;'t§2_':ER'/W 34 OF' IPC,
AND sENTENCINe1jfgHEM:E'ATOITJNADEREO"Rgi. FOR 5 YEARS
AND TO EAT .,Rs1.4"*Oo'0/:3 EACH, I.D. TO
UNDERGO RT, 'iiytglg 5 "HON-rTHf3"° THE OFFENCE P/U/S
3
307 R/TN 34 OE}_:EC;,' AND' TO 'u' '.ER"'
R.I. TOR "1'E§'4\F{S. I A.N'Df"*TO" DAY N OE' Rs. '
EACH, l.I_3L',__'l'O_ R.1, FOR. 3 MONTHS FOR THE
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OFFENC_:I::" 19/U25» .30'? OF IPC AND SENTENCING THEM To
Umggggo FOR" "" *1' MONTH FOR THE OFFENCE P/U/S
-~.IPC AND FURTHER SENTENCING THEM To
UNDERGOV"R'.;'»I.'§"EoR 6 MONTHS AND TO PAY FINE'. OE'
_Rs.5O40/~__"'E-ACH, I.D. TO UNDERGO R.I. FOR 1 MONTH
FGR F'/U/3'5 324 R/W 34 OF IPC. ALL
EUESTPPGTIAL SENTENCES ARE ORDERED TO RUN
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
I RE SERVED , COMI NG ON FOR PRONOUNCEMENT OF
CRL. A. N0.2 l94( 2005
"JUDGMENT, THIS Day, PACHHAPURE. J., ,as;:vgaEa
THE FOLLOWING:
The appellants (Accused
the Trial Court) have chal_I'e,ngec{" the_lrv.v_ccf1'viQjtion"V
and sentence for the offence'v._u'n.c,ier 447,
302, 307 and 324 readw1th(3%}IPCQcn_a trial held
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PW".§"~Padmavya.l.{lj'.t'l1e:lA"c.o*mplainant, is the sister
of Tukk_appa* Khandu (PW.lO), Yogappa
..the'"Ad"ec'eased Mahadev.- All of them
-a hut in their land situate
gwithin th_e"l:IL[mits of Gtndawan Village of Incli
"The Accused Ncs.2 and 3 are the sons of
Accus_eHci'_ANos.l and 4, i.e., the father and mother
ll"relsplectively. The lands of the accused and the
""'r..,_clec:eased adjoin each other and there was a
CRL. A. NO2194/2005
bcu1da:y dispute between the accused ~an6 'the
family members of the deceased an§= in *that;
regard, a suit was also pending befcte the Ccurtlie
On 1.11.1998, at about 12.06' :~;§oh,'ll'~t1?1e."e
of the complainant i.e.;nfiahadev (the_eeceased}gl
-T.n.Ts.lO, 13 a..d 14 were the'-btglliccks and
she-buffaloes in theit lane anfi at that point of
time, the 'Accused Nos.1
to 4 armed with the
came to the land of
the Khandu (999.10) and
axes and sticks and when
---he __f'dcwnH,""~wt,hey chased the deceased Mahadev
to escape and assaulted him with
he also fell down due to the
'sevehezlnjcties. They also attacked and assaulted
.4];'2!I'jt1ItkaQpa"' (PW.l3) and Yogappa (PW.l4) and when
'«the' ccmplainant cried for the help, Shaakreppa
'"=_('PW.4) and Shivashankar (CW.8} the adjoining
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'infiured"twae;"eerious,
CRL.A.NCL2194/2005
land owners came running and meanwhileyf the
accused ran away seeing thee persons] ooming7»
towande the spot, After this incident; Padmavva
:1-».r.-r n1 ;_1._ -_- -4,-.._ 4.: ;..1__ ,_-.-;' ..'_-_1 ,.r-;.___;,_1_ _;_:;' ;_'-i_~-__
KEV": 3} p Cne *lS1..E.L O1. LII'? .1.I Ll..LC°-(.1 d.pg.?.[.Oc:I(.[1(:'.f.J. T..fl(3
Zalaki Police and submitted her compiatnt to
ASI (PW.l7) who registered értme Norii4/1998
the offence under Sectione;324;d5d§, 447 and
readwith 34; EEC. ;After Vthéw_registration,
4 I
complaint E(4xeP=l4) *ana« the "FIR (Eng? 15) were
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biz: [L Lzk.) LLIC3 1Vld§_.l.1.L.'|LLd.LC3 _LlL'x..)LJ.(:}l1 KW. J..J.o 111$ .L'I'D.L
¢pw.17) ;mm¢ai;:a;g.gent
to the spot and shifted.
all 'the dinjureddxtod the Government Hospital
1.13, "
ufstained. and unstained soil (MOS 8 and 9).
he
"'throfi§h¢eHcz 6§S"'and "" as the condition of the
requested the Taluka
Ex outive' Magistrate to record thelr dylng
'..1__'1_____;.4..A_"'_... rm........ 1...... ........ ........1 n'r.1'... 1 .-....-..-J '11:.' «I-I-\I\
_ L.'.»E(..!.LdI.d_l...1~;Ul1. 1116.11 lib bI:':L.u.I.t:L.t l:'V'H:)..l. at I.L.l .LU Luv:
'd«oatteeting witnesses and jmx their presence, held
'-tjthé spot mahazar Ex.P.l6 and seized the blood
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recorded the statements of the witneeeési find
thereafter EW.l8 continued the investidation"afi3H
he seized the clothes of the injured (flee-4;tou'
7) produced by" Sm-.Padmavva_1{EW.9jLeundeif<the
me received th
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mahazar Ex.P.l7. On 3.
information that the injured Mahadev succumbed to
the injuries on 2.1lii9Qé}and the inquest on the
body E'.x.P.5 fwa:e_:'heid the'.j_'~A$:I:j'xI(PW.6) and the"
body Lee ientruetedjtforwdéoetmortem examination.
Thereafter}*D}§heit deit 'fPw;é0) took out the
inveetidation-andnonr1§@l1.l998,_arrested Pgcusedi
Nos.l to 3 and on interrogation, they volunteered
dtoQproduceaM0s;1"to 3 and secured the presence of
dEWe,2Y §n§ "12h and Accused Nos.l to 3' led the
Police and oanchas and produced the axes. They"
u'k were Seized under the nanezarea The voluntary
"Tetatement of the accused have been produced at-
=Mn:§xe.P.18, 20 and 22. He secured the poetmortem
H'w:'report and sent the seized articles to the -
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' ". NO.""°4-'"005
forensic experts and also recorded the statefient
of other witnesses. Thereafter, thet¢PI»i?W4t9fo
took out the investigation and secured the sketchf
of the scene of occurrence; and"_aftehi_fhe
compietion of the investigation, .he xfiled the
chargesheet against the accused;_
3. During the criel the orosecution examined
PWS l to 20 and in their evidence qot xrsed tue
documents Exs;E,l to P123 and MOS J. to 9. The
accused_ lodi the »evidence of DW.l and have got
marked Exs}D.lVand hi? and closed their evidence.
H
in
"statement_of the accused was recorded under
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Accused Nos{l{ 2 and 4 as Accuse No.3 was d_ad.
V. The Trial Court after hearing, convicted Accused
ditd2fios,1 hand 2 and acquitted Accused No.4.
rrflgcrieved by the conviction and sentence, Accused
V' "Not. #
1 and 2 have preferred-this appeal.
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4. We have heard the learned counsel"fof the
appellants and also the State Public Proeecutor;_
The points that arise for our consideration*are:
(1)Whether the judgment_ and order' ¢f*j *
conviction andlh3aentence._:oth§"thé
appellants for the _offenoe: under
Sections éfifl, fébéfuiéflj afid"'324
readwith 3ed5I?CtfliSDaillegal and
DervefB9_? ~~ =.'.v:' 7 'u'
(2)whatia:aeyé«gti;
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lSj Luca ''
of the learned
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23
counsel for the appellants that the evidence led
by the_prosecution is insufficient for conviction
h"for5the,§ffience under Sections 447, 302, 307 and
l324Lreadfiithp34 IPC. He submits that none of the
independent 'witnesses have not stpported the
"=. Case of the prosecution and that the Trial_Court
l","ille§ally relied on the evidence of the
i*eiinterested witnesses and therefore, he claims
hd'.ifthat there is no justification for their
04,
('DI A MIN F') IOA lflefls
conviction. Alternatively, the counsel contended
"that as the accused have also sustained iajuéiesd
in the incident in exercise" of- thel right loft
private defence and thereforef he centends that
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appellants have heen_Wgrongly'.conVicted for
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"st-The 'Stated Public
Prosecutor contends that the Trial.Court on the
basis of the. evidence ;oE_"the "injured 'witnesses
and the complainant has taken a right decision in
convicting the appellants and that there are no
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i st groun_s to warrant the interference.
6;~pA PW.J5d"DriBharati was the Lady' Medical
id Officer Nnirking ii: the Government Hospital at
'I_'1
Indi- and, on ~l.ll.l-88, the Police Constaoie
KD
brought the injured and on examination of Khandu
u'";fPW¢l0i;~;she found two lacerated injuries over
lIthe*-parietal region. of head and on right hand
iw-shdulder and a multiple small abrasion on the
"left hand fingers, He had suffered comminuted
pd
CRL, A. NO.2194[20Q 5
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7-»- '41.
fracture of parietal bone and she has issued the
injury certificate 'Ex.P.l0. Therefiftéfirféhéj
examined Tukkappa (PW.l3), the-brother*i?:fV""Kh:andVu"»
{PM.l0) aid found a cut lacerated infury_oh,the
vertex of the head and Soft tissue of the leftn
O.'
wrist swelling with abraei e, '"=The} injtry
Certificate has been predueed at Ex,P.ll.
(PW.l4) was also examined.by her and she found an
irregular ¥injury5 over Vthe' vertex of the head.
The man ry-r.¢jertifI.;fiC'at'e Ex.P.l2. She also
examined Mahadefi {the deceased) and found as many
as 7 injuries and as his condition was serious,
3"she§eent him to the District Hospital, Bijapur.
VVThe "xerox *eopy of the MLC register has been
producediataEx.P.l3.
ne., 7{* It is PW.5 Dr.Sangappa, who examined all
:rethe""injured, obtained the X~rays, (Exs.P.3 and
""PL4) and the treatment was continued. As the
deceased Mahadev died during the treatment "on
ad
- CRL. g. go.2,194ggoo5
- 11 - E
2.ii,i998. atter the inqtest, the dead body was
subjected to postmortemjflm examination e_ ahd.
Dr.Shashikant (PW.7) held the autobsehahdftouud
as many as 11 injuries}w_Qn XiissectiohiLot3 the'
deadbody: scalp haemotoma Wee jfouhd in addition
to the fracture of tight parietaii fracture base
of skull, depressed wfractere diett' parietal and-
subjural haemotoma all oter the brain. The Doctor
has opined that the death of the deceased Mahadev
was due to shock and haemorrhage, as a result of
head injuries hand' the 'fracture of the skull
bones¢"*rjEx#Puj'disj the postmortem. report. As
',couJd. bef seen from the evidence of Dr.Bharati
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;i5};sFQrfSahgappa ( w.5) and Dr.Shashikanth
(PW.7j and the injury certificates, the earliest
iéjejihformation which was received by the Police, the
éjfloeteri says that the injured and the deceased
;"sustained injuries jJ1 an assault. The cause of
A""in
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n-+n fl\..c11..<.'.' / ;7\...._i s mentioned in the inj it-'-
uries L4.
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CBL.A,NCL2194[2005 Exs.P.l0 and 11. The injured PWS.lG; the deceased Mahadev were admittedyiihf thee hospital immediately for them tteetmehto of®itheV injuries sustained in thefi assault" add _the deceased Mahadev succumbed to the injfigflga oh theh next day. So, considerindhthe_ewidehce led by the prosecution, théréeis_Ep£fieieu: material to prove that the deceesedfiflahadew-died a homicidal death. This .£§c§q is loot" eweh wdisputed in the cross ,exaeiha€§§h t%f.~d%he} Doctor or other witnesses;' §;s lhe evidence reveals that there was a *hdbouhdar§f fiigputew between the family of the ideceesedfahd the accused, There was a civil suit ld_institutedfbw the deceased and Khandu lPW.iO) h" against the accused. Similarly, the accused mad diihstituted a suit against the deceased and PW.10, i"uwhich was pending on the file of the Civil Court "Vat Indi. These litigations between the partiesfl 0C -13- were pending since 1989. One day earlier tc the incident, the Court Commissioner had visited theh scene of occurrence and inseectedzthe lands in:
the presence of the advocates, g_All_these facts have been suggested in the crossdexamihation and are admitted by PW§LQ and ether witnesses. In that View of this eeaistindV motive, it is essential fen gfis %nQ%¥@téTmcQfi#i&er the other evidence pertainihd te the assault. Though the prosecution flreiiesfl upon "the evidence of the aajoinieg:iand]eyeee@[email protected] and 4), they have not supported..theh,prosecution and are hostile. "Ther%£O:é'm it "is" only the evidence of the dcomeIaih%fit"iPW.9) and the injured (PWs.l0 to 14) which has 3:; be assessed and appreciated. The I a ' u ' '~ In +-- 1') run A .a;ncident.has taken place at aoou. +L.uu noon and '"._this fact is mentioned in the complaint Ex.P.14. d".fiinm£diately after the incident, the injured 'fPadmavva (PW.9) went to the Police and lodged the /N ML CQI, A 'l\l'{\O104I0l"\fiF'{ u I L complaint and it was registered at l.0O*ptm{Won the same day. PW.1l carried gtheajefifst" information report (Ex.P.15)= top that Magistrateu and the same was received by fihé Mag;st:a£e at 30 p 53 ' G G _1_ I L .. 1: .._g_ . . ._- -_ fie I _ ,, .! _.-C,-- --_ _--J--,_' ISL l{1]_OLII1ciL.L 5..
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Magistrate. In that View of_fhe hatter, we are of the opinion that £5e;s_ié no delay in lodging the complaifiteahdflthezefofefjthe contents of the FIR have to be eonsidetedwin the context of the evidence: of 'the _eyev_witneesee examined w . ..I I' Accused No.3 is_dead and Accuee No.4 has been "aCquif$¢¢:..bYu"~the' Trial Court. The State hhas."~DOtp*gpfe£erred any appeal against the acquittal' of? Accused No.4. As regards the tuhgparticipation of Accused Nos.l and 2 is .<V}'shnc§v¢hcnr~l 'I' 13 our"? ('lA1'\fV£h v'n1n::1 as }'\::+' +"1'i.fllI ' \~YL'4'I.\J§-I--'l'l\.l\L' §4l'\l \-CV-L.'-QKIIILV'-P J-'--UV'I-IL'-F-H) 'all!-'K. \4I.I\-I-I "»_"aseaulted the «deceased and PWs.l0, 13 and 14 VV°» p"with the axes. It is the consistent version of _/ Oéa.
hof'theRifiCicent;t these witnesses about the assault with the said weapons. There is nothing in 7the':jcrossd examination to discard thef evidence lcffiitheseu e? are relafiegs Téébnredfii o.ls is admittfi",even by the defe and it is their case that in the assault; Accused No.1 also sustained the injariesE9* Though PW.10 has denied No.1, the defence has lenanineas the tfiedical Officer of Central 'dtfifi.l), who examined at 5.15 p.m., who was brought sith*Vthe} history of assault. On tsexamination, he fiound a cut lacerated injury on dthe left side of the occipital region, tenderness db-, over i} :i"asa III ribs on the left side of the rt '53 :5 la IF?' «ID .5 ID "'1 ".3 Im ID} '5! 10 C «m "'1 4"!' D' {D H'-' {D
1|"h H' W D IFD IID D F I-3 hes .L»....a.....'.«.. 4..1.....4.. 4.1.... .:....*.......:....., ........ .._.:..... «£..c1,L.=i:xL.1l.cH.. 1.111: 4.1 u.L..1.~:=::> w::.Lr: ::.1..u U! in Noll could be causai by a weapon like axe and id" _ Injury Nos.2 and 3 could be caused by hard and of CRL. A. wNO.2194l2005 A t i blunt substance . Ex. D. 2 is the -f certificate and Ex.D.1 is the ccntradf-_A4"cit:Lvo:n:.a:""jetS marked in the evidence of PW..3.*0'.»..4Asbe;4_'_see.rr' from Ex.D.l, PW;10 denies IUJ IF?' Ir'?
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4...: +- 4 + -. I ' |...LOf'1 pertarns to-----the -.a::r1valr. ..-sf P'.*I.13 Tukkappa with the axe' the spot of the accident._ this statement made as per' _ Accused No.1 has a ":::i.noj'§Vuries has ~ been the evidence of DW.1 aed Ex.D.2}«, % It is the evidence that Accused ,«-No.1V_~had__tA'lodged'.a ____ complaint and that there was a "'tAri.;a'1 a~.c_:;4a~i:ns't PW.l0 and others and they were ac.qL1':.L'ttte.cv:1' charges levelled against them. ' These''ci''rVcrn4nstances which are borne out from the efiziicienicett on record would go to Show that there was} a SCu.Lf}.€ and 'Van axe and the incident occurred between the 2- ..
us J-L L. made by him beivifetre hthe' 'This?' CRL.A.NO.'2194/2005
-17..
deceased and his brother on one side ahd the accused on the other. Though there »eaa ga m 1%:
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cu fie; he fact that. Accused_i%aa1; sustained "
simple ihjuries in the :incident, Qouid gee 't0h show that the deceased and injured were hot the aggressors. The incideht has occurred 1J1 the land of the deceased ahdé thereby it eould lead to the only inferehcehjthaEehfifi§e ageused came ar.ed to the land of the deceased and caused the assauit}f_ The witfiesses PWs.9, 10, 13 and 14 does "wet 3, say _anything as regards the injuries"_sustaihedrb§ Accused No.1 and though Accused Nc;l'~t sustained the injuries, it is i" clear?" "that the accused caused the assault
1.eaceeding fpthe right of private defence.s
--
The_ ieerediole evidence of injured cannot be dvdiscarded solely because Accused No.1 disustained some simple injuries in the u"*j assault. Taking into consideration the fact that the deceased Mahadev had sustained as many 0Q
-18.
as 10 injuries and PWs.10, 13 and lls_ also sustained many injuries and more _pesticelatlf,h% Pwselfl and 13 have sustained:nrievousfiqjuries in .-U I the assault and ne injurec were in the"uospitalL for long time, it would "elearly' establish 'that the accused exceedefi the tlght.ef_pri§ete defence- and caused the injgtiesitefidr the ldeath of the deceased Mahadeg} Thou§hVA©eusee No.1 sustained . .5 Fe'"Q 'an F," ,.j .
the lnjurles in the lncldenti but 1t woul D. l (D
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1:1 .L..L hh C11 mu thereafter; the accused causing severe assault on the deceasefi end his Brothers and in that View of "fi the hhfiattefm Hif tttt "Vcannot be said that _ the eccusedfaypellsnts are responsible for the "*eintentiofi of the accused was nly to cause bodil f IP. H d as th.
0 n.-q4\.an....u.s4-us no offence ,under 9=fl+ion ?02 l'eieju§g with the knowledge that it is likely to R"ficefise the death and therefore the offence fcommitted by the accused falls within the purview 0C of second exception to Section 302 IPC. Therefore, co to shc" that tt' accuc'd ceneed injuries on tfieq "
deceased and his brothers private defence and with tne Knfiledgfi cf causiggn the death and therefore, they ere :§§p¢n§;b1e for the offence under Section $O§;§5:te1 i?Ct Their conviction for the offence nncer section 302 IPC is illegal. The Erie: Court cliowconnitted an error in convicting 9§§§°:é§pe;:g§£gfcf§;'~the offence under ;Ln thé_ majo;:3§££e§¢a§, charged and appropriate sentence 'cfvtarded in respect ' of the o*o£tenccs for enich the appelranta are held guilty. tin the circnfictances, we answer Point No.1 partly irgV_ in *£he toftirnetive and proceed to pass the k, folloeinéahé Wcf the *-pellants for the offences under Sections M/_ It 302, 307 and 504 IPC is set appellants/accused are convicted _-gr for a period of 8 years .4_and«"'i;u'c'>"' 1 Rs.25,000J'- each, in t_o fi.§§.I. for a period of 3 months ifpr Section 304 Part-I IPC, R.I. years and to pay a fine in default, to undergo tfla gifience I.r..nd.e.I:
Sec.:t_icm~'"3'2iZ,1P,PC-"T5:ii: I"~.. '-£0: Vpericd of 1 mo-nth for 1 IFC and R.I. or a period to pay a fine of Rs.1,000/- .-'v.e&_aach;~§'.:.i;'n__iA'd§afaI.jI*2:,.. .... to undergo S.I. for 15 days for ij:I:§ "..ofvfjén¢:s§ ".._undar Section 324 IPC. All the aetztencas ':.:i1n concurrently. fid are oi:deJ;e2d f; ifo» hnhdérqq . '