Karnataka High Court
Ramesha S/O. Late Nanjegowda vs The State Of Karnataka By K R Pet Town Ps on 27 February, 2013
Bench: K.L.Manjunath, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF FEBRUARY 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL NO.227/2009 (C)
BETWEEN
Ramesha
S/o. Late Nanjegowda
Age: 42 years, Occ: Hotel Business
R/o. Santhekoppalu Village
Bindiganavile Hobli
Taluk Nelamangala
Dist Mandya. ...Appellant
(By Sri.Sharanappa Mattur, Adv.,)
AND:
The State of Karnataka
By K.R.Pet Town Police Station.
... Respondent
(By Sri.P.M.Nawaz, Addl.S.P.P.)
This Crl.A. is filed under Section 374 (2) of Cr.P.C.
praying to set aside the judgment and order of
conviction dated 12/16.12.2008 passed by the Prl.S.J.
& concurrent charge of FTC - IV, Mandya, in
S.C.No.141/2007 convicting the appellant/accused for
the offence P/U/S. 302 of IPC and the
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appellant/accused sentenced to undergo imprisonment
for life and is also directed to pay fine of Rs.10,000/-
and in default of payment of fine, to undergo R.I. for two
years for the offence P/U/S. 302 of IPC.
This Crl.A. coming on for hearing this day,
K.L.Manjunath J., delivered the following:-
JUDGMENT
The appellant has filed this appeal challenging the judgment of conviction and order of sentence passed by the Prl.S.J. and concurrent charge of Fast Track Court - IV, Mandya, dated 12.2.2008 in SC No.141/2007, wherein the appellant has been convicted for the offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- , in default of payment of fine, to undergo R.I. for two years.
2. The case of the prosecution in brief is as hereunder:
On 12.10.2006 a complaint was lodged by PW.11 - Shankaregowda, a resident of Mulaguru village, stating that on 12.10.2006 at about 3.00 p.m. he was in the 3 shandy of Santhebachanahalli and he learnt that the deceased Vasu, S/o. Katana Shivegowda of his village had been murdered by the accused/appellant in the coconut garden of S.P.Rajegowda of Santhebachanahalli and having learnt the same, he went to the scene of the occurrence and there he found the dead body of Vasu. Accordingly, he lodged the complaint. The complaint was lodged before PSI - Gopala - PW.16 at about 3.10 p.m. and the same was registered in Crime No.86/2006 for the offence punishable under Section 302 of IPC. Thereafter, PW.16 sent the body of the deceased for postmortem examination. The postmortem was conducted by PW.9 - Dr.M.Jayashekar and issued postmortem report as per Ex.P.2. The inquest and spot mahazars were conducted as per Exs.P.14 to P.16 respectively and sketch of scene of occurrence was prepared as per Ex.P.1 through PW.8 and MOs.2 to 5 were also recovered from the spot Ex.P.3 and MO.1 - motorcycle of the deceased was also recovered from the scene of the occurrence. On the same day, the accused 4 was arrested. FIR was sent to JMFC, K.R.Pet on the same day at about 4.00 p.m. Charge sheet was filed after completion of the investigation. After committal proceedings, the appellant pleaded not guilty before the Sessions Court and claims to be tried.
3. In order to bring home the guilt of the accused, the prosecution has relied upon the evidence of PWs.1 to 17, Exs.P.1 to P.18 and MOs.1 to 14.
4. The appellant denied all the incriminating circumstances put to him found in the evidence of the prosecution witnesses while answering 313 statement.
5. Father-in-law - S.B.Raju of the appellant was examined as DW.1. The appellant/accused got himself examined as DW.2 and he relied upon Exs.D.1 to D.3. The defence of the accused was self defence.
6. Learned Sessions Judge after hearing the parties, formulated the following points for consideration: 5
1. Whether the prosecution has proved beyond all reasonable doubt that the accused has committed murder of Vasu as alleged?
2. Whether the accused has proved on preponderance of probabilities that he had assaulted Vasu in self defence or on account of grave and sudden provocation from deceased Vasu?
3. Whether the accused is liable to be convicted for offence punishable under Section 302 of IPC or for any other offence?
7. After considering the entire evidence let in by the prosecution and the defence evidence point No.1 was held in the affirmative and Point No.2 was held in negative and ultimately, he was convicted for the offence punishable under Section 302 of IPC, accordingly, he was sentenced. This judgment is called in question in this appeal.
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8. We have heard the learned counsel for the appellant and Mr.Nawaz, learned Addl.S.P.P.
9. It is the specific case of the appellant that the deceased and the appellant were known to each other and that he had borrowed a loan of Rs.50,000/- from the deceased Vasu in order to establish a Non- Vegetarian Hotel at Chennarayapatna and that the appellant was paying interest of Rs.2,500/- per month regularly. It is further the case of the prosecution that the deceased was demanding the appellant to repay the loan of Rs.50,000/- and that on 12.10.2006 with an intention to commit the murder of the deceased, the accused induced the deceased Vasu to go with him to the village of his father-in-law stating that his father-in- law has agreed to give him money to discharge the loan. Accordingly, they went in the motorcycle of the deceased to the garden land of DW.1 - S.B.Raju on the ground that his father-in-law would come there to repay the loan of Rs.50,000/-. According to the prosecution, in the garden land of DW-1 father-in-law of the appellant 7 at about 12 noon the accused by using MO.2 assaulted the deceased, as a result of which, he succumbed to the injuries on the spot. PWs.1 to 3 and 15, who were grazing their cattle near the land of DW.1, having heard the scream of the deceased entered the garden land of DW.1 and PWs.1 to 3 saw the appellant holding MO.2, which was blood stained. They also saw the dead body of the deceased with injuries lying there. Immediately, PWs.1 to 3 apprehended the accused and later, he was handed over to the police by them. PWs.5 and 6 have also seen the deceased and the accused going towards the garden land of DW.1 in the motor cycle of the deceased at about 11.00 a.m. Even PW.7 has also seen the deceased and the accused going on the motorcycle of the deceased, in which the accused was a pillion rider near the garden land of Pashwanathaiah of Shravanabelagola and it is also the case of the prosecution that the deceased had told PW.7 that they were going to get Rs.50,000/- from DW.1, which was to be paid to him by the accused.
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10. According to the defence evidence, DW.1 had promised the accused to give a portion of Rs.50,000/- in order to pay the same to the deceased and therefore, he had asked the accused to bring the deceased to his garden land and accordingly, the deceased and the accused were waiting in the garden land of DW.1. When DW.1 did not turn-up, the deceased questioned the appellant why his father-in-law has not yet arrived there to pay the money and in that process, the deceased scolded the accused/appellant in and abusive language by taking the names of his mother and wife and also assaulted the accused with the back of the coconut palm leaf. At that time, the accused taking MO.2 assaulted the deceased in self defence and therefore, the appellant/accused contended that he had no intention to commit the murder of the deceased. In order to rescue from the attack of the deceased, as he provoked him by taking the names of his mother and wife and in his self defence gave a blow with MO.2. In 9 the circumstances, he requests the Court to acquit the appellant/accused.
11. The learned Judge after appreciating the entire evidence on record and considering the evidence of DWs.1 and 2 and background of the evidence let in by the prosecution namely, PWs.1 to 3 and 15 coupled with the evidence of PW.9 and autopsy report came to the conclusion that the appellant/accused has committed the murder of the deceased and theory of self defence of the accused cannot be accepted, accordingly, he convicted the accused. This judgment is called in question in this appeal.
12. The main contention of the appellant before us is that the appreciation of the evidence by the Sessions Court is perverse and the Sessions Court did not consider the injuries found on the body of the accused, which has been proved by him and elicited through PW.9, who had seen and examined the accused at the Government Hospital, K.R.Pet when the accused was 10 referred to the Government Hospital by K.R.Pet police. In view of the injuries found on the accused coupled with the evidence of DWs.1 and 2, the learned trial Judge was required to consider the case of right of self defence of the appellant and ignoring the same, the accused has been wrongly acquitted. In the circumstances, he requests the Court to re-consider the evidence and set aside the finding of the sessions court.
13. Per contra, Mr.Nawaz, learned Addl.S.P.P. contends that the case of self defence of the accused cannot be believed by any Court considering the background of the case and also the self-serving testimony of the accused or DW.1. According to him, the prosecution has proved the guilt of the accused beyond reasonable doubt by examining PWs.1 to 3 and 15, PWs.5 to 7 and also PW.9 - Dr.Jayashekar. According to him, the accused has admitted the borrowing of Rs.50,000/- from the deceased in order to run Non- vegetarian hotel at Chennarayapatna and it is further admitted that he was unable to discharge the same. 11 Therefore, he had taken the deceased on the motor cycle of the deceased to the garden land of DW.1 promising that DW.1 would bring money and the same would be discharged. Accordingly, on 12.10.2006 at about 12 noon the accused and the deceased were waiting for arrival of father-in-law of the appellant and that by using MO.2 the accused has committed the offence. According to him, theory of self defence has not been proved because, there is nothing on record to show that there was sudden provocation and that the deceased was aggressive and considering the nature of injuries found on the appellant/accused Ex.D.2, it cannot be considered that such injuries were received by him from the deceased and it may be due to the scuffle while PWs.1 to 3 and 15 apprehending the appellant/accused. He lastly contended that even if it is held that there was scuffle between the appellant and the deceased, the right of self defence has to be considered as excessive and therefore, he requests the Court to dismiss the appeal.
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14. Having heard the learned counsel for the appellant, considering the admitted facts and arguments advanced by the learned counsel for the appellant, what is to be considered in this appeal is:
Whether the rejection of the evidence of the appellant/accused by the Sessions Court in regard to the theory of self defence is justified or not?
15. In view of clear cut evidence of DWs.1 and 2 coupled with the evidence of the prosecution witnesses, since the appellant is not disputing the homicidal death of deceased Vasu, what is to be considered in this appeal is; only the theory of right of self defence set up by the appellant/accused.
16. If the appellant had borrowed a loan of Rs.50,000/- from the deceased and if really the intention of the appellant was to repay the same through his father-in-law DW.1, there was no necessity for the appellant to take the deceased to garden land by inducing him that his father-in-law would bring money. 13 Even if the theory of the appellant is accepted, there was no difficulty for the appellant to take the deceased to the house of DW.1, which is very near to the place of the occurrence and discharge the loan of the deceased either in full or in part. The very fact that he had taken the deceased to the garden land measuring 15 acres would entertain a doubt about the conduct of the appellant.
17. Even according to DW.1, when he went near the garden land he found the body of the deceased Vasu lying with injuries and the appellant informed him about the incident. If it is so, there was no difficulty for DW.1 or the appellant immediately rush to the police station and inform the incident. But for the reasons best known to them, they have not done so. We have also examined Ex.D.2 - the wound certificate issued by PW.9 - Dr.Jayashekar. On examining Ex.D.2, what is found on the body of the accused is; only bruise injury on the left side of the shoulder and if really the deceased had assaulted with back of coconut palm leaf, such a 14 bruise injury could not have been found because, considering the thickness of the coconut palm leaf and the force, which might have been used and therefore, it is difficult for us to accept the arguments advanced by the learned counsel for the appellant. In addition to that, even if there was exchange of words between the appellant and the deceased is accepted for the sake of arguments, there was no need or necessity for the appellant to take MO.2 and assault the deceased. We have seen the postmortem report. PW.9 has spoken to the injuries found on the body of the deceased, which were all anti-mortem in nature. The following injuries are found on the body of the deceased:
1. Incised wounds present over scalp, extended from frontal region right to parietal region (left) measuring 6 cm x 1.5 cm with muscle cut and surface of skull bone frontal and temporal seen at base of wound.
2. V shaped bone deep incised wound present over scalp at temporal occipital and parietal 15 region left measuring 7" x 2" with fracture of skull bones (communited) with brain matters out side from skull cavity.
3. Lacerated wound present over left side of scalp, which extended from left temporal and frontal region and parietal region upto lateral angle of left eye with fracture bones (communited) with brain pieces of brain matter outside measuring 5" x1".
4. Abrasion present over left shoulder 2" x ¼"
5. Incised wound present over left ear. Ear divided into 2 pieces 2 "x ¼".
6. Frontal of nose with punctured wound left side ¼".
18. From looking into the injuries found on the body of the deceased as per postmortem report, as a right of self defence the appellant could not have inflicted with so many injuries by using MO.2. Therefore, viewed from any angle, even if we accept the arguments advanced by the learned counsel for the appellant that there was 16 sudden provocation and in that provocation, when he received injuries from the deceased, in self defence he assaulted the deceased, cannot be believed. In addition to that, theory of self defence is self-serving testimony of the accused and his father-in-law in order to over come from the case of the prosecution, which evidence is not corroborated from any other evidence. Accordingly, we answer the points in the negative formulated by us against the accused.
19. In the result, appeal is dismissed confirming the judgment of conviction and order of sentence.
Sd/-
JUDGE Sd/-
JUDGE SA