Karnataka High Court
Hanamantappa S/O Udachappa Doni vs The State Of Karnataka on 23 February, 2018
Bench: S.Sujatha, John Michael Cunha
Crl.A.No.100208/2014
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY, 2018
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL No.100208/2014
BETWEEN:
1. HANAMANTAPPA, S/O UDACHAPPA DONI,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O MAGADI, TQ: SHIRAHATTI,
DIST: GADAG.
2. SOMANNA S/O UDACHAPPA DONI,
AGE: 35 YEARS, OCC: KIRANI BUSINESS,
R/O MAGADI, TQ: SHIRAHATTI,
DIST: GADAG.
... APPELLANTS
(BY SRI.B.V.SOMAPUR, ADV.)
AND:
THE STATE OF KARNATAKA,
REP. P.I. SHIRAHATTI POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
CIRCUIT BENCH, DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP.)
THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY
THE LEARNED ADDITIONAL DISTRICT AND SESSIONS JUDGE,
GADAG IN S.C.NO.58/2013 DATED 31.10.2014 AND 03.11.2014 SO
FAR AS IT RELATES TO CONVICTION AND SENTENCE IMPOSED
AGAINST THE ACCUSED NO.1 AND 2/APPELLANTS AND THE
ACCUSED/APPELLANTS MAY PLEASE BE ACQUITTED FROM THE
CHARGES LEVELED AGAINST THEM.
Crl.A.No.100208/2014
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.02.2018, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, JOHN MICHAEL CUNHA J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence dated 31.10.2014 and 03.11.2014 passed by the Additional District and Sessions Judge at Gadag in S.C. No.58/2013. By the impugned judgment, the appellants (hereinafter referred to as accused Nos.1 and 2) are convicted for the offences punishable under Section 302 of IPC read with Section 34 of IPC and are sentenced to life imprisonment and a fine of Rs.10,000/- each.
2. Six accused persons were sent up for trial before the learned Sessions Judge on the accusation that the accused persons, with the common object of committing the murder of deceased Mahadevappa and his brother, PW.1 on 11.05.2013 at about 1.00 a.m. formed into an unlawful assembly in front of Kenchannavar Petrol Bunk on Gadag-Laxmeshwar road armed with stick and Crl.A.No.100208/2014 3 picked up quarrel with the deceased in respect of the open space situated on the back portion of the property comprised in Sy.No.113A and 114 of Magadi panchayat and abused the deceased and PW.1 in filthy language and during the occurrence, accused Nos.1 and 2 assaulted the deceased Mahadevappa with stick on his head and caused grievous injuries. As a result of which, the deceased succumbed to the injuries in Laxmeshwar hospital at 2.30 a.m.
3. It is the further case of the prosecution that during the occurrence, the accused persons assaulted PW.1, the brother of the deceased, who came to his rescue and caused grievous injuries and thereby committed the offences punishable under Sections 143, 147, 148, 504, 506, 302 and 307 of IPC read with Section 149 of IPC.
4. The accused persons having denied the charges, the prosecution examined 30 witnesses in order to bring home the guilt of the accused and marked 40 Crl.A.No.100208/2014 4 documents as Exs.P.1 to P.40 and the material objects at MOs.1 to 12.
5. The accused denied all the incriminating circumstances relied on by the prosecution and took up the defence of total denial. On considering the evidence produced by the prosecution and upon hearing the learned counsels appearing for the accused, by the impugned judgment, the trial Court acquitted all the accused of the charges under Sections 143, 147, 148, 504, 506 and 307 of IPC read with Section 149 of IPC and convicted accused Nos.1 and 2 for the offences punishable under Section 302 of IPC read with Section 34 of IPC. Accused No.3 was convicted for the offence punishable under Section 324 of IPC and sentenced to pay a fine of Rs.3,000/- and in default thereof to undergo simple imprisonment for two months. Accused No.3 has not preferred any appeal against his conviction, whereas, accused Nos.1 and 2 have come up in appeal challenging the conviction recorded against them for the offences Crl.A.No.100208/2014 5 punishable under Section 302 of IPC read with Section 34 of IPC.
6. We have heard the learned counsel, Sri.B.V.Somapur appearing for the appellants/accused Nos.1 and 2 and the learned Additional SPP, Sri.V.M.Banakr appearing for the respondent-State and have examined the records.
7. The contentions urged by the learned counsel for the appellants/accused Nos.1 and 2 are that:
(i) The deceased was addicted to alcohol and he sustained injury due to fall. The medical evidence also goes to show that other than the head injury, the deceased did not suffer any other external injuries. The cause of death is due to head injury and bleeding. Therefore, the finding recorded by the trial Court holding accused Nos.1 and 2 responsible for the death of the deceased is perverse and contrary to the evidence on record.Crl.A.No.100208/2014
6
(ii) Medical evidence is inconsistent to the case of the prosecution. According to the prosecution, six accused persons assaulted the deceased with clubs on his head.
During the course of investigation, six clubs were recovered, but only three were sent for examination by the Medical Officer, who conducted the postmortem examination. There is no clear and definite evidence as to which of the accused caused the injury on the head of the deceased. The trial Court itself has acquitted accused Nos.3 to 6 of the charge even though common allegations were made against all the accused and the witnesses examined by the prosecution have also stated that all the six accused persons assaulted on the head of the deceased. Therefore, the trial Court was not justified in convicting only accused Nos.1 and 2.
(iii) Further it is contended that, out of the six eyewitnesses examined by the prosecution, PW.5, PW.7, PW.8 and PW.9 have wholly turned hostile to the case of the prosecution. PW.1 and PW.6 though have supported Crl.A.No.100208/2014 7 the case of the prosecution during their examination-in- chief, they have resiled from their earlier version during their cross-examination and therefore, the trial Court ought not to have relied on the evidence of these witnesses in arriving at the finding of guilt against accused Nos. 1 and 2.
(iv) It is the submission of the learned counsel that barring the evidence of the above witnesses, no other material was available before the trial Court to convict the accused Nos.1 and 2. Hence, the impugned conviction is illegal and perverse.
(v) The evidence on record does not lead to the conclusion that only accused Nos.1 and 2 inflicted the head injury leading to the death of the deceased and therefore, the benefit of doubt ought to have been extended to accused Nos.1 and 2.
(vi) Alternatively, the learned counsel has submitted that, there was no intention on the part of any of the accused to cause the death of the deceased. There was Crl.A.No.100208/2014 8 only a single injury on the head of the deceased. The evidence adduced by the prosecution even if believed, would at the most attract part 2 of Section 304 of IPC. Therefore, the conviction of accused Nos.1 and 2 under Section 302 of IPC is unjustified and calls for interference by this Court in exercise of its appellate jurisdiction.
8. The learned Additional SPP appearing for the respondent-State has argued in support of the impugned judgment contending that the trial Court has rightly placed reliance on the evidence of PW.1 and PW.6, who have consistently deposed in accordance with the case of the prosecution reiterating the presence as well as the overt acts committed by the accused. Even during their cross-examination by the Public Prosecutor, they have stood by their statements made in the examination-in- chief. Therefore, their evidence is fully reliable. Further, the learned Additional SPP would submit that apart from the evidence of the direct eyewitnesses, the prosecution has also relied on the other circumstantial evidence Crl.A.No.100208/2014 9 deposed by PW.14 and PW.15 as well as the medical opinion which conclusively establish the guilt of accused Nos.1 and 2 and hence there is no reason to interfere with the well considered judgment of the trial Court.
9. We have bestowed our anxious consideration to the submissions made at the bar and have carefully scrutinised the oral and documentary evidence produced by the prosecution.
10. The only point that arises for consideration is, whether the conviction of accused Nos. 1 and 2 is sustainable in the facts and circumstances of the case?
11. The specific case of the prosecution is that there was a dispute between accused Nos.1 to 6 and the deceased and PW.1, in respect of the open space situated on the rear portion of the property No.113A and 114 of Magadi panchayat. Prior to the incident the panchayat authorities had measured the said open space, but the parties were not satisfied with the findings noted by the Crl.A.No.100208/2014 10 panchayat authorities and in this background on 11.05.2013 in the midnight when the deceased had gone to Yalavatti Cross to purchase betel nut, all the accused persons formed into an unlawful assembly and assaulted the deceased with clubs leading to his death.
(i) The prosecution has rested its case on the direct evidence of eyewitnesses. In the charge sheet PW.1, PW.5, PW.6, PW7, PW.8 and PW.9 were cited as eyewitnesses, but during trial, PW.5, PW.7, PW.8 and PW.9 have wholly turned hostile and have failed to support the case of the prosecution. However, PW.1 and PW.6 have deposed in conformity with the prosecution case.
(ii) PW.1-Shivanand is the younger brother of deceased and also an injured witness. This witness has deposed in his examination-in-chief that the house of accused No.1 and the house of the deceased and PW.1 is adjoining to each other. There was a quarrel between the deceased and the accused with regard to the common wall and in this regard the members of the Gram Panchayt had Crl.A.No.100208/2014 11 measured the lands. In spite of it, the accused placed a window on the common wall and when the deceased and PW.1 objected for the same, the accused proceeded with the construction. He has further deposed that on 11.05.2013 at about 11.30 p.m., when the deceased had gone to Yalavatti Cross to purchase betel nut; the deceased informed their worker Manjunath over phone that the accused were engaged in a verbal quarrel with the deceased. Immediately PW.1 and the said Manjunath (PW.5) rushed to Yalavatti Cross. All the accused were surrounding the deceased and were quarreling with him. When he tried to rescue the deceased, accused Nos.1 and 2 assaulted the deceased with clubs on his head and other parts of the body. Accused No.3 assaulted PW.1 on his head with a club. The other accused persons also assaulted the deceased on his head and body. The deceased sustained grievous injury on his head. PW.1 took the deceased to Laxmeshwar hospital in a private vehicle, but at about 2.30 p.m, he succumbed to the Crl.A.No.100208/2014 12 injuries. During his evidence PW.1 identified all the accused and the six clubs used for the assault, namely MOs.1 to 6. He also identified the clothes of the deceased MOs.7 to 9.
PW.1 was cross-examined on the same day and he stood by the evidence given by him in his examination-in- chief and the defence could not shake the veracity of the testimony of this witness to any extent. Even in the cross- examination he reiterated the presence of the accused as well as the overt acts committed by them. In the cross- examination he denied the suggestion that the deceased sustained injuries due to fall and further asserted that he saw the incident in the head light of his vehicle as well as the street lights burning at the spot. He specifically denied the suggestion that the deceased did not sustain the injury on account of the assault by the accused.
The cross-examination of PW.1 was concluded on 04.01.2014. However, six months thereafter the witness was recalled at the instance of accused on 19.06.2014 and Crl.A.No.100208/2014 13 he was subjected to further cross-examination. Surprisingly, during the cross-examination on 19.06.2014, he substantially resiled from his earlier version and answered the suggestions put by the defence counsel to the effect that the head injury was sustained by the deceased due to fall on the ground and that he lodged the FIR on the say of the police. He also admitted the suggestion that the accused did not assault the deceased. But contrary to this evidence, during the cross- examination by the learned Public Prosecutor, PW.1 answered the suggestion in the affirmative stating that the statements made by him in his examination-in-chief are true and correct and further answered that the statement made by him during the course of the cross-examination by the defence counsel that the accused assaulted the deceased is also true and correct.
(iii) PW.5-Manjunath is the another eyewitness examined by the prosecution. Though, he has failed to support the prosecution case, but in the examination-in- Crl.A.No.100208/2014 14 chief itself he has admitted that on the date of the incident, he received a phone call from the deceased and he along with PW.1 came near the Kenchakkanavar Petrol Bunk. He further deposed that, when he reached the spot, he heard verbal altercations and PW.1 went forward but out of fear PW.5 came back. His evidence therefore is relevant for the limited purpose of corroborating the evidence of PW.1 that on receiving the phone call of the deceased he and PW.1 had rushed to the spot of occurrence.
(iv) PW.6-Chandrappa is the co-brother of the deceased. According to this witness, on the date of the incident after dinner he was sitting in the house. At about 1.00 in the night he heard the sound of a quarrel near the Petrol Bunk and immediately he rushed to the spot and found that quarrel was going on between the deceased and the accused. They were quarreling over the property matters relating to the backyard of the deceased. At that time accused Nos.1 and 2 assaulted on the head of the Crl.A.No.100208/2014 15 deceased with clubs. Deceased fell down on the ground. Accused No.3 assaulted on the head of the PW.1 with a club. PW.1 also sustained bleeding injuries. This witness has also identified all the six accused and the MOs.No.1 to 6, namely, the clubs used for the commission of the offence. Even during his cross-examination, this witness stood by the version stated by him in the examination-in- chief. However on 10.07.2014 when he was recalled at the instance of the accused, he resiled from his earlier statement and meekly answered the suggestions of the defence counsel stating that in the dark he could not witness the incident. But during the cross-examination by the learned Public Prosecutor, he answered that the statement made by him in his examination-in-chief that the accused themselves assaulted the deceased is true and correct. At the same time he answered that the statements made by him during the further cross- examination by the accused is also correct. Crl.A.No.100208/2014 16
12. The trial Court has believed the evidence of the above witnesses and relying on the decision of the Hon'ble Supreme Court reported in 2001 Criminal Law Journal 487 (Gura Singh vs The State of Rajasthan), has come to the conclusion that in spite of PW1 and PW6 resiling from the earlier version, their evidence substantially establish the fact that the deceased was injured by accused Nos.1 and 2 by assaulting him with the clubs on his head which has resulted in his death and accordingly found accused Nos.1 and 2 guilty of the offences under Section 302 of IPC.
13. The contention of the learned counsel for the accused that the evidence of the hostile witnesses could not have been taken into consideration by the trial Court, in our view, does not merit acceptance. Perusal of the impugned judgment reveals that the trial Court has elaborately taken note of the circumstances in which the witnesses were recalled by the prosecution. The trial Court has specifically noted that even though the cross- Crl.A.No.100208/2014 17 examination of the above witnesses was concluded, the accused made an application seeking to recall the above witnesses on the plea that certain important questions were left out while cross-examining the witnesses. The observations made by the trial Court indicate that by misleading the Court, the accused snatched the said order and after recalling the witnesses instead of asking fresh questions, loaded suggestions were made to the witnesses which were meekly admitted by the witnesses, making it evident that the prosecution witnesses were won over by the accused.
14. Nonetheless PW.1 and PW.6 having reiterated in the course of cross-examination by the leaned Public Prosecutor that the version narrated by them in their examination-in-chief is true and correct, in our view, there cannot be any difficulty in placing reliance in their evidence. As held by the Hon'ble Supreme Court in the above decision, where a prosecution witness is cross- examined and contradicted with the leave of the Court by Crl.A.No.100208/2014 18 the party calling him for evidence, his evidence cannot as a matter of general rule be treated as washed off the record altogether. It is for the judge to consider in each case whether the witness stands thoroughly discredited or can still be believed in regard to part of his evidence. If the evidence is not completely shaken, the Court may rely upon the portion of his evidence which is advantageous to the prosecution. Merely because the witness has been treated as hostile is not a reason for rejecting entirely the evidence of the witness. The Court in such cases should normally look for corroboration of the testimony and examine the entire material cautiously to find out as to what extent he supported the case of the prosecution.
15. In the case in hand, apart from the circumstances noted by the learned trial Judge which made these witnesses to resile from their earlier version, in the cross-examination except suggesting their defence, the testimony of PW.1 and PW.6 with regard to the core case of the prosecution has not been discredited at all. Crl.A.No.100208/2014 19 Even though these witnesses have answered the suggestion put to them by the defence counsel in the affirmative, yet the fact that PW.1 and PW.6 were present during the occurrence and that they were eyewitnesses to the incident has not been demolished in the cross- examination. Moreover PW.1 is an injured witness. Except suggesting that accused No.3 did not assault him, the statement made by this witness in his examination-in- chief that he sustained the bleeding injury on his head during the occurrence has not been challenged in the cross-examination. The other material brought on record goes to show that soon after the incident, the deceased as well as PW.1 were taken to the Laxmeshwar hospital. The doctor who treated PW.1 has also been examined and he has specifically narrated the injuries noted on the forehead and on the left thigh of PW.1. This testimony of PW.30, the Medical Officer lends corroboration to the testimony of PW.1 that he sustained the said injuries during the occurrence.
Crl.A.No.100208/201420
16. Further it is proved in evidence that the complaint-Ex.P.1 was recorded in the hospital by PW.24. During the cross-examination by the defence counsel, except suggesting that the said complaint was written on the say of the police, the specific allegations made therein with reference to the individual accused and the overt acts committed by them has not been questioned or challenged. The contents of this complaint are in conformity with the evidence given by PW.1 in his examination-in-chief. As already noted above, during the cross-examination by the learned Public Prosecutor he has reiterated that the statement made by him in his examination-in-chief are true and correct. Thus, in our opinion, the evidence of PW.1 not only supports the case of the prosecution, but also establishes each and every ingredient of the offence charged against the accused. In his evidence he has graphically narrated the occurrence. The manner of the assault made on the deceased as deposed by PW.1 is corroborated by the testimony of Crl.A.No.100208/2014 21 PW.6, another eyewitness and their evidence finds corroboration in the medical evidence produced by the prosecution.
17. In our view, the evidence of PW.1 alone is sufficient to bring home the guilt of the accused Nos.1 and 2 for the offences charged against them. Even with regard to the testimony of PW.6 is concerned, this witness has also reiterated in the course of cross-examination by the learned Public Prosecutor that the statements made by him in his examination-in-chief are true and correct and thereby lending suitable corroboration to the testimony of PW.1. The trial Court was therefore well justified in placing reliance on the testimony of PW.1 and PW.6. Further the testimony of PW.5 is also in support of the case of the prosecution to the extent that this witness has also confirmed the presence of PW.1 at the spot of occurrence. Though he has feigned ignorance of the further events, yet the fact that he and PW.1 arrived to the Crl.A.No.100208/2014 22 spot on getting the phone call from the deceased has been established beyond reasonable doubt.
18. The above evidence coupled with the motive for the commission of the offence as spoken to by PW.1 as well as the wife of the deceased (PW.18) as well as the documents relating to the disputed property establish beyond reasonable doubt that on account of the property dispute, accused Nos.1 and 2 assaulted the deceased with clubs leading to his death. To this extent, we do not find any error or infirmity in the findings recorded by the trial Court. Having regard to the clear and cogent evidence produced by the prosecution, trial Court was justified in holding accused Nos.1 and 2 guilty of causing injury on the head of the deceased leading to his death. Even on re- appreciation of the entire evidence, we do not find any reason to differ with the view taken by the trial Court with regard to the culpability of accused Nos.1 and 2. Insofar as the other accused are concerned, the trial Court has acquitted them for lack of evidence. Even though their Crl.A.No.100208/2014 23 presence is established during the occurrence, yet PW.1 and PW.6 having failed to speak about the specific overt acts committed by these accused and the medical evidence produced by the prosecution corresponds only to the injuries caused by accused Nos.1 and 2, we are not inclined to disturb the findings recorded by the trial Court insofar as the acquittal of accused Nos.4 to 6 are concerned.
19. However, on consideration of the entire facts and circumstances of the case, the time and place of the occurrence, the nature of the injury and the motive for the commission of the offence, we are of the considered view that the trial Court was not justified in convicting accused Nos.1 and 2 under Section 302 of IPC. In our considered opinion, the facts proved by the prosecution do not bring the case within the ambit of first and second clause of definition of 'murder' contained in Section 300 of IPC. The facts proved by the prosecution indicate that the incident took place without any premeditation or preparation. Crl.A.No.100208/2014 24 According to the prosecution, the incident took place at about 1.00 in the midnight when the deceased had gone to Yalavatti Cross to purchase betel nut. There is nothing on record to show that the accused were either aware of the movement of the deceased or that they waylaid him. Instead, the circumstances indicate that on sighting the deceased alone in the night, the accused persons formed into an unlawful assembly and assaulted the deceased.
20. Though the evidence on record suggests that there was animosity and hostility between the accused and the deceased on account of the property dispute, it is an established fact that the deceased had sustained only one injury. Though, the said injury was inflicted on the vital part of the body, yet, the weapon used was not specially dangerous. None of the accused were armed with any sharp edged or deadly weapon. Even though PW.1 and PW.6 have stated that all the accused persons assaulted the deceased all over the body, the medical evidence goes to show that no external or internal injuries Crl.A.No.100208/2014 25 were suffered by the deceased except the fracture of the skull on account of the assault on the head. The evidence on record further indicates that when the deceased fell down on the ground, all the accused went away from the spot throwing the clubs at the spot. All these circumstances indicate that the accused did not intend to cause the death of the deceased. But the said injury having been inflicted on the vital part of the body leading to the death of the deceased, the accused could be imputed with the knowledge that they intended to cause the said injury which was sufficient to cause the death in the ordinary course of nature, thus, bringing the case within clause 3rdly of Section 300 of IPC attracting punishment under Part 2 of Section 304 of IPC. To this extent, the impugned judgment calls for modification.
21. For the aforesaid reasons, we proceed to pass the following:
Crl.A.No.100208/201426
ORDER Criminal Appeal No.100208/2014 is allowed in part. The conviction of accused Nos.1 and 2 for the offences punishable under Section 302 of IPC read with Section 34 of IPC is altered to Part 2 of Section 304 of IPC R/w. Section 34 of IPC. Accused No.1 -
Sri.Hanamantappa and accused No.2, - Sri.Somanna are convicted for the offence punishable under Part 2 of Section 304 of IPC R/w. Section 34 of IPC.
Having regard to the fact that the accused Nos.1 and 2 did not have any criminal antecedents and that the above offence was committed without any premeditation on account of the property dispute between the accused and the deceased, accused No.1 - Sri.Hanamantappa and accused No.2 Sri.Somanna are sentenced to undergo simple imprisonment for a term of 8 (Eight) years each and to pay a fine of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) each. In default to pay the said fine amount of Rs.1,50,000/- (Rupees One Lakh Fifty Crl.A.No.100208/2014 27 Thousand Only) each, accused Nos.1 and 2 shall undergo further simple imprisonment for a period of 2 (Two) years each.
On deposit or realisation of the fine amount, the entire fine amount of Rs.3,00,000/- shall be made over to PW.18- Smt.Nirmala, wife of the deceased by way of compensation.
The accused Nos.1 and 2 are entitled to set off for the period of custody undergone by them as under trial prisoners in terms of Section 428 of Cr.P.C.
Sd/-
JUDGE Sd/-
JUDGE Sh