Karnataka High Court
Venkatachala vs State Of Karnataka on 30 August, 2018
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST 2018
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL NO.813/2014
BETWEEN:
VENKATACHALA
S/O TATTANUR VENKATAPPA,
AGED ABOUT 43 YEARS,
R/AT QUATERES NO.64,
PACKET 3, POLICE COLONY,
SECTOR B4, NERELLA,
DELHI-400 001. ...APPELLANT
(BY SRI N.MANOHAR, ADV.)
AND:
STATE OF KARNATAKA
BY THE P.S., WHITEFIELD POLICE,
BANGALORE. ... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
SENTENCE DATED 16.04.2010, PASSED BY THE ADHOC DIST.
& SESSIONS JUDGE, FTC-I, BANGALORE RURAL DISTRICT,
BANGALORE, IN S.C.NO.266/2009 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF IPC.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
04.08.2018, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, S.SUJATHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
This Appeal is filed by the accused under Section 274[2] of Criminal Procedure Code ['Code' for short], challenging the Judgment and Sentence passed by the District & Sessions Judge, FTC-I, Bangalore Rural District, Bangalore in S.C. No.266/2009 dated 16.04.2010, whereby the learned Sessions Judge has convicted the accused of the charges leveled against him for the offences punishable under Section 302 of IPC and sentenced him to undergo life imprisonment and to pay fine of Rs.5,000/-. In default of payment of fine, the accused shall undergo simple imprisonment for a period of two months. The default sentence shall run separately.
2. The case of the prosecution is that Sri. Tattanur Venkataswamy [PW.7] had six children, three -3- sons and three daughters. He sold his property and got Rs.30 lakhs which he intended to distribute amongst his children including the first son Krishnappa [deceased] and second son Venkatachala [accused]. Accordingly, he distributed Rs.5,00,000/- to his sons and Rs.1,50,000/- to his daughters. His second son accused was working as Constable at Delhi, his wife and children pressurized PW.7 to make some payments to them out of the amount of Rs.5,00,000/- allotted to the share of the accused. On consulting with his first son Krishnappa [deceased] PW.7 deposited Rs.1,00,000/- each in the name of two children of the accused. Coming to know about this deposit made in the name of the children of the accused, as there was some difference between the accused and his wife, accused started quarreling with his father Tattanur Venkataswamy, his elder brother Krishnappa [deceased] interfered and attempted to console the accused as the -4- amount of Rs.2,00,000/- was deposited in the name of his children and he is not deprived of his share allotted.
3. Lakshmidevi, wife of deceased Krishnappa filed a complaint before the Station House Officer, Whitefield Police Station on 15.06.2009 at about 7 pm alleging that on 15.06.2009 at about 5 pm, the accused came to the house of Krishnappa and started arguing with him, who was lying in the hall of his house on a mat, as regards the amount of Rs.2,00,000/- deposited in the name of his children which resulted in reduction of Rs.5,00,000/- allotted to his share. Krishnappa tried to pacify him. Not satisfied with the advise of Krishnappa, accused took a chopper from his pant and assaulted on the neck of Krishnappa. Krishnappa sustained bleeding injuries and started running out of his house, but accused followed him and further assaulted five to six times on the neck of Krishnappa with chopper. CW-9 (PW-4) Balakrishna - neighbour -5- came to the rescue of Krishnappa. He snatched the chopper from the hands of the accused and threw it away. Then, CW-9 [PW-4] shifted Krishnappa to Vydehi Hospital in his vehicle Tata Sumo, where he was declared dead by the Doctor. On the basis of this complaint, criminal law was set into motion. On investigation, the accused was arrested and charge sheet was laid before the Chief Judicial Magistrate, Bangalore Rural District. After taking cognizance of the offence punishable under Section 302 of IPC, case was committed to the Hon'ble Sessions Judge, Bangalore Rural District. A case was registered in SC No.266/2009 before the Hon'ble Sessions Court. The charges were framed for the offences punishable under Section 302 of IPC and after the charge was read over and explained to the accused, the accused pleaded not guilty and claimed to be tried. Hence, trial was conducted.
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4. In order to prove the guilt of the accused, prosecution has examined in all twelve witnesses, PW-1 to PW-12, got marked 16 documents as per Exhibits-P1 to P16 and material objects MO-1 to MO-9 and closed the case.
5. The statement of the accused as contemplated under Section 313[1][b] of the Code was recorded. Accused has totally denied all the circumstances put to him as false and submitted that he has no documentary or oral evidence in support of his defence. No evidence was let in by the accused. On appreciating the evidence available on record, the trial Court convicted the accused for the offences punishable under Section 302 of IPC and sentenced him to undergo life imprisonment and to pay fine of Rs.5,000/-. In default of payment of fine, the accused shall undergo simple imprisonment for a period of two months. Hence this Appeal.
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6. Learned Counsel Sri. Manohar N., appearing for the Petitioner, submitted that the trial Court failed to appreciate the material inconsistency apparent in the evidence of the witnesses examined by the prosecution. PW-7, an independent witness, has turned hostile. PWs-1, 3 and 12 who were considered to be the eye witnesses are interested witnesses. The testimony of these witnesses being inconsistent, the trial Court ought to have acquitted the accused on the benefit of doubt. The trial Court failed to come to the conclusion that the chain of circumstances relied upon by the prosecution is not complete and the prosecution has utterly failed to prove the motive of killing the deceased. The post mortem report [Exhibit-P6] discloses the cause of death is due to asphyxia as a result of injuries sustained to neck and chest by blunt force impact. There being no corroboration in the evidence of all the witnesses, the Judgment and Sentence passed by the learned Sessions Judge deserves to be set aside, allowing the appeal. -8-
7. Learned Additional SPP Mr. Vijayakumar Majage, appearing for the Respondent-State, justifying the impugned Judgment and Sentence submitted that the sequence of events narrated by the witnesses in their evidence is believable. There are four eye witnesses to the incident, namely, PW Nos.-1, 3, 4 and
12. Though PW-4 has turned hostile, his evidence cannot be discarded in its entirety. The part of the testimony of the hostile witness, which finds corroboration from the other evidence needs to be accepted rejecting the remaining testimony. The testimony of PW-4 that he has seen the accused with chopper in his hand and Krishnappa had injuries on his neck where blood was oozing out is acceptable without any semblance of doubt. It is PW-4 who has shifted the deceased to Vydehi Hospital in his vehicle where he was declared dead. Hence, the evidence of PW-4 cannot be held to be unbelievable. Hence, it was argued that the -9- appeal is bereft of substance and requires to be dismissed.
8. We have given our thoughtful consideration to the arguments advanced at the Bar and perused the material on record.
9. PW-1, Lakshmidevi, Complainant has stated that on 15.06.2009 at about 4.30 to 5 pm, her husband while taking rest lying on the mat in their house, the accused came inside their house and altercated with her husband about the amount allotted to his share out of the consideration received by his father towards the property sold. CW-4, CW-5, her children and herself were at the house at that time. Her husband pacified the accused that he will get surely his share. Not being satisfied, the accused took out the chopper from his pant and assaulted her husband on the left side of the neck, whereby blood started oozing. Her husband came out screaming, accused followed him and again
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assaulted on his neck four to five times. Her husband fell down. Thereafter, the accused assaulted on the chest of her husband from the blunt side of the chopper. Then, CW-9 [PW-9] came there and snatched the chopper from his hand and threw it away; blood was oozing from the neck of her husband. PW-9 shifted her husband in his Tata Sumo vehicle to Vydehi Hospital wherein the Doctor declared him as dead. It was specifically stated that her father-in-law [CW-13] had distributed the sale consideration amount received towards the sale of their family property [gadde]. As the accused was residing at Delhi, his share was deposited in the name of his children. Accused was questioning the authority of her father-in-law and her husband in depositing the amount in the name of his children.
10. The evidence of PW-1 as narrated above, clearly establishes the motive as well as factual scenario of the accused assaulting the deceased, causing injuries
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on the neck and chest resulting in the death of her husband. She is one of the eye witnesses to the incident. Nothing positive is elicited from her cross examination to controvert the statement deposed by her.
11. PW-3, Guruprasad is the son of the deceased who was also an eyewitness to the incident. He narrated the incident in line with the statement of PW-1. The evidence of this witness corroborates with the testimony of PW-1. He has also spoken about the amount deposited in the name of children of the accused out of the share of the accused relating to the sale proceeds of the properties of his grandfather. This witness also deposed about the motive in committing the offence by the accused. Nothing positive is elicited from this witness to disbelieve his evidence.
12. PW-12 is the sister of the accused and stated in her evidence that the accused came in an
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autorickshaw holding the chopper and went inside the house of Krishnappa and there he started quarreling with Krishnappa. She has deposed that she went near the window and saw the accused assaulting Krishnappa on his neck with the chopper. Further, she has deposed that PW-4 rushed to the place and snatched the chopper from the hands of the accused and threw it away. The testimony of PW-12 was strongly disputed by the learned Counsel appearing for the Petitioner, submitting that there was no window towards the side of the house of the deceased though PW-12 is residing in the house next to the house of Krishnappa. It was argued that the testimony of this witness cannot be accepted though she was placed as an eye witness by the prosecution to support their case. It is obvious that some minor discrepancies are not uncommon in the evidence of different witnesses. If the statements of all the witnesses are parrot like, the only inference would be that they are tutored to speak alike in order to
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support the case of the prosecution. It was also highlighted that this witness PW-12 has deposed that the accused came in an autorickshaw which the other witnesses have not stated. These discrepancies found in the evidence of PW-12 is neither vital nor will affect the credibility of the evidence. There are bound to be some discrepancies in the narrations when they speak and explain in detail, the incident which had been witnessed by them. No controverting evidence being placed on record, the evidence of this witness cannot be rejected. The evidence of these three eye witnesses, PW-1, PW-3 and PW-12 has to be considered in view of its credibility, moreover, these witnesses are close relatives of deceased Krishnappa. The presence of these witnesses at the time of the incident is obvious and cannot be ignored.
13. PW-4 though turned hostile, his evidence cannot be rejected in totality. In his chief examination,
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he has admitted that on 15.06.2009 at about 5 pm, he heard some heated arguments in the house of Krishnappa and the deceased screamed, he came out of his house and went to the house of deceased, where accused was standing with the chopper in his hand, Krishnappa had fallen down, blood was oozing out from the neck of Krishnappa, he pulled out the chopper from the hands of the accused and threw it away. Immediately, took Krishnappa in his vehicle to Vydehi Hospital where the Doctor declared him as dead. He has recognized the chopper tainted with blood stains. The part of the evidence of PW-4 which finds corroboration from the other evidence requires to be accepted rejecting the rest.
14. In this context, it would be apt to refer to the Judgment of the Hon'ble Apex Court in the case of 'Mrinal Das v. State of Tripura' reported in (2011) 9 SCC 479, wherein, it is held as under:
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"67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned
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hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."
15. PW-7, father of the accused and deceased, has deposed that he had distributed the sale consideration amount received towards the sale of his property [gadde] i.e., Rs.5 lakhs to the sons and Rs.1,50,000/- to the daughters. Out of Rs.5 lakhs allotted to the share of the accused, as there was difference between the accused and his wife, Rs.2 lakhs [one lakh each] was deposited in the name of the children of the accused, owing to which the accused was quarreling with him after returning from Delhi and had developed some animosity with the deceased on the premise that the deceased had advised his father to deposit the amount in the name of children of the accused. The testimony of this witness clearly establishes the motive. No controverting evidence is
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placed on record to disbelieve the trustworthiness of the evidence of this witness.
16. PW-11 is the Investigating Officer who has narrated about the investigation conducted and the collection of MO-1 chopper which was found outside the house of the deceased as well as MO-8 and MO-9 blood sample and the cement sheet tiles on drawing the Mahazar Ex.P.2. PW-1 and 3 have identified the chopper MO-1 as the chopper used by the accused in assaulting the deceased.
17. PW-2 is Panch witness to the spot mahazar, PW-8 is the witness to the inquest mahazar who have supported the case of the prosecution.
18. PW-10 is the Doctor who has conducted the postmortem and has opined that all the injuries are anti mortem and death occurred as a result of injuries to neck and chest by blunt impact. He has denied the
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suggestion that falling on sharp edged weapon can also cause injuries noted in the postmortem report Exhibit-P6.
19. Exhibit P1-complaint, Exhibit P2-mahazar drawn on the scene of occurrence, Exhibit P5 - inquest mahazar, Exhibit P6 - postmortem report, Exhibit P7 - Opinion of weapon, Exhibit P10- FSL Report, supports the case of the prosecution. The blood stains found in the chopper is reported as the stains of human blood of the blood group 'A'. MOs - 2 to 5, cloth found on the body of the deceased Krishnappa which were subjected to forensic examination also found to be of blood group 'A'. These materials coupled with the evidence of the Doctor PW-10 clearly establishes the homicidal death of the deceased. Learned Sessions Judge has meticulously scanned and analyzed the evidence on record in convicting the accused for the offence punishable under Section 302 of IPC.
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20. The evidence on record establishes that the accused working in the Police Department at Delhi had developed some animosity with his elder brother Krishnappa for the reason that his father PW-7 has deposited Rs.2 lakh out of his share amount in the name of his children on the advise of the deceased, with which he was not happy, owing to the difference with his wife. The motive is exfacie apparent. The accused entering the house of the deceased with the chopper- MO1 in his pant establishes the act of killing the accused was premeditated. Hence, the argument of the learned Counsel for the Petitioner, in as much as, 'no motive' established by the prosecution is only fallacious, deserves to be negated. The testimonies of three eye witnesses PW-1, PW-3 and PW-12 are trustworthy and cannot be said to be unreliable. One eye witness PW-4 though turned hostile has stated he witnessed at the scene of incident, the chopper in the hands of the
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accused, snatched it and threw it away, which corroborates the evidence of PW-1 and PW-3. Chain of events is satisfactorily proved to be complete by the prosecution beyond reasonable doubt. These aspects are properly appreciated by the learned Sessions Judge in the right perspective. No irregularity or perversity is found in the Judgment and order impugned herein.
The appeal is bereft of merit and accordingly stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE AN/-