Karnataka High Court
Laxman S/O Rayal Khajeer vs The State Of Karnataka on 26 November, 2013
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
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IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED: THIS THE 26TH DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE HULUVADI G.RAMESH
CRIMINAL APPEAL NO.3597 OF 2010
BETWEEN
LAXMAN S/O RAYAL KHAJEER
AGE: 19 YEARS, R/O WADDAR GALLI,
SHAHABAD, TQ. CHITTAPUR,
DIST. GULBARGA.
...APPELLANT
(BY SRI. AYYANAGOUDA S.PATIL, ADVOCATE)
AND
THE STATE OF KARNATAKA THROUGH
SHAHABAD TOWN POLICE STATION,
SHAHABAD, TQ. CHITTAPUR,
DIST. GULBARGA.
...RESPONDENT
(BY SRI. P.S.MALIPATIL, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S. 374 (2) OF
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DT. 17.04.2010 PASSED BY THE
IV ADDL. DISTRICT JUDGE AT GULBARGA IN SESSIONS
CASE NO.219/2009 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S.304
PART II AND SEC. 504 OF IPC AND THE
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APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO
S.I. FOR FIVE YEARS AND ALSO LIABLE TO PAY FINE OF
RS.1,000/- IN DEFAULT SHALL UNDERGO SIMPLE
IMPRISONMENT FOR ONE MONTH FOR OFFENCE
P/U/S.304 PART II OF IPC. FURTHER THE
APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO
S.I. FOR ONE MONTH AND TO PAY FINE OF RS.500/- IN
DEFAULT SHALL UNDERGO S.I. FOR 15 DAYS FOR THE
OFFENCE P/U/S. 504 OF IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is by accused No.1 against the order of conviction and sentence passed by the IV Addl. Sessions Judge, Gulbarga in Sessions Case No.219/2009 on 17.10.2010 convicting and sentencing the accused for the offence punishable under Section 304 Part II of IPC to undergo S.I. for five years and to pay a fine of Rs.1,000/- in default, S.I. for one month and also sentencing the accused for the offence punishable under Section 504 of IPC to undergo simple imprisonment for one month and to pay fine of Rs.500/- and default sentence of 15 days. The trial Court also 3 convicted and sentenced the accused No.2 for the offence punishable under Section 323 of IPC sentencing him to undergo simple imprisonment for three months and to pay fine of Rs.2,000/- and default sentence of one month. Similarly accused No.2 is sentenced to undergo simple imprisonment for one month and to pay fine of Rs.500/- and default sentence of 15 days for the offence punishable under Section 504 of IPC. However, it is ordered that the substantive sentences shall run concurrently giving set off as per Section 428 of Cr.P.C.
2. It appears that the accused were arrested during the course of investigation and they were in judicial custody till conclusion of trial. The appellant/accused was in custody for a period of four months. According to the prosecution, the mother of the deceased Smt. Ratnamma filed a complaint to the effect that there was a quarrel one month prior to the incident between herself and one Geetabai wife of Rayal 4 in connection with collecting tap water. Since then they were not in talking terms. With that motive, on 26.03.2009 around 9.30 p.m., the son of Geetabai by name Laxman i.e., accused No.1 and also one Raghu son of Krishnappa abused the deceased Ravi near the house of Yallappa and also this accused No.1 caused the death of Ravi by squeezing his testicles and the accused No.2 Raghu bet the deceased Ravi from his hands. One Hanamanth S/o Nagappa and Viju S/o Basanna who were there pacified them. When complainant went there to see her son, she found her son dead on the spot and she lodged a complaint which came to be registered in crime No.29/2009 for the offences under Sections 302, 323 and 504 R/W Section 34 of IPC. The police after investigation, filed charge sheet. On filing of the charge, the Magistrate committed the case to the Sessions Court. Charge was framed against the accused for the offences punishable under Sections 504, 324 and 302 R/W Section 34 of IPC. 5 Since the accused pleaded not guilty, the trial court proceeded for trial. During the trial, the prosecution examined in all 13 witnesses and got marked 13 documents and M.Os.1 to 3 and closed the case. Thereafter, the accused were examined under Section 313 of Cr.P.C. Their defence was total denial. After hearing, the above sentences were passed convicting the accused. Being aggrieved, this appeal is filed on various grounds seeking for acquittal.
3. Heard the counsel for appellant and the Addl. Government Pleader.
The points that arise for consideration are;
i) Whether the prosecution is able to prove the case that accused has committed an offence under Section 304 part-II of IPC as alleged?
ii) Whether the accused have caused hurt to the deceased?
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iii) Whether the accused have criminally intimidated the deceased?
iv) Whether the accused have abused the deceased in filthy language?
v) What offence, if any the accused have committed?
vi) Whether the trial court is justified in convicting and sentencing the accused?
vii) What order?
4. At the outset, the argument of the learned counsel for the appellant is that except PW-4 there are no eyewitnesses to the incident. According to the learned counsel for the appellant, even as per the admission of PW-4, by the time he went to the spot, people had gathered. As such, he cannot be treated as a witness witnessing the very incident, as already people were gathered there. Accordingly, it is contended that the sole testimony of PW-4 is not sufficient to hold the 7 accused guilty of the offence and submitted that accused is entitled for an order of acquittal.
5. Per contra, learned Addl. Government Pleader submitted that the evidence of PW-4-Vijaykumar and PW-10-Chandappa corroborates as to the overt-acts of the accused. Rightly, the accused have been convicted and sentenced. The Sessions Judge has taken lenient view in sentencing the accused for the offence punishable under Section 304 part-II of IPC. Accordingly, he has sought dismissal of the appeal.
6. On perusal of the evidence of PW.1-Ratnabai, it is seen she has spoken about the motive for commission of the offence. Geetabai, the mother of accused No.1 had quarreled earlier with this complainant who is the mother of deceased-Ravi. In that connection, on the date of the incident when accused No.1 abused the deceased Ravi and also having called Ravi to come out of his house, accused No.2 asked him to accompany 8 him. Subsequently, this witness PW.1 Ratnabai deposed about one Vijaykumar and Hanamanth came and informed that both accused No.1 and 2 have killed Ravi in front of the house of one Yallappa. She went and found her son dead and also saw the accused immediately rush out of the place of incident and, she filed a complaint. Accused No.1 having raised voice with respect to the quarrel that had occurred in connection with collection of water from the tap, having abused the deceased in filthy language stating that his mother had raised a petty quarrel with the mother of accused No.1, gave blow from the fist on the testicle and also squeezed the testicles of the deceased Ravi forcefully and accused No.2 assaulted on the back of the deceased. This fact has been admitted by PW.1 in the cross-examination of Public Prosecutor since PW.1 pleaded her ignorance. PW-1 turned hostile in the beginning. Ultimately, in the cross-examination by the Public Prosecutor, she has admitted that CWs.6,7 and 8 9 are the eyewitnesses to the incident. However, according to the version of the accused, CW.6- Vijaykumar is related to this complainant and so also CW.7-Hanamanth. Though the complainant is not an eyewitness to the incident, she has rightly admitted that she is a hearsay witness and she filed a complaint. As per her version, she went to the scene of offence and saw her son Ravi dead on the spot.
7. PW-2 one Devendrakumar who was a pancha for the inquest mahazar conducted in front of house of one Yallappa, has supported the prosecution version. So also PW-3 Sharnappa who is a panch witness to the inquest mahazar. has supported the version of the prosecution.
8. The eyewitness PW.4-Vijaykumar though he is related to the deceased and complainant, his evidence is to the effect that he saw the accused No.1 giving blow to the deceased Ravi and also assaulting on the testicles of 10 deceased Ravi and accused No.2 assaulting from the hands on the back of the deceased and also accused whispering to assault and also talking about the motive of previous incident of dispute between the mother of the accused and mother of deceased in connection with collection of tap water. Even in the cross-examination it is suggested to the effect that he has not at all seen the incident and his evidence is that he saw the quarrel between accused and deceased at a distance of 20 feet. The argument of the learned counsel for the appellant is that as per the admission of this witness PW-4, already people had gathered at the place of quarrel when he reached there. As such, he could not see the incident. The evidence of this witness in the cross-examination is that he saw accused No.1 giving 7-8 blows to the deceased Ravi and also accused No.1 assaulting on the testicles of deceased Ravi. It is also stated by this witness that by the time he tried to save the deceased 11 from the hands of the accused, both the accused ran away.
9. PW.5-Yellappa, said to be an eyewitness, has not supported the version of prosecution. PW.6- Hanamantha has not supported the version of prosecution except supporting to the extent that in the evening he saw accused 1 and 2 quarrelling with deceased Ravi and many people had gathered there and also he has seen the deceased lying on the ground. This half hearted version of this PW.6 Hanamanth indicates that he was also eyewitness to the incident. But he has spoken about the quarrel between deceased-Ravi and accused though he has not given clear overt-act of the accused as to the incident. However, in the cross- examination by the counsel for the accused, this witness do admit that he has not seen the quarrel between the accused and the deceased.
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10. The evidence of PW.7 Dr. Savitha is to the effect that the death of the deceased was due to forceful fist blow on chest and testicles. She has opined that the death is due to vaso vagal shock and she has issued the PM report.
11. Another witness to the incident is PW.10 Chandappa who is the father of deceased Ravi and who has seen the quarrel. According to him, around 9.30 p.m. both accused Nos.1 and 2 had called on his son Ravi when he was in the house. His son went along with them. After five minutes, PW.1 left the house and followed his son. He also followed PW.1. Later he saw accused Nos.1 and 2 quarrelling with his son and by the time he reached there, accused assaulted on the testicles of his son and his son fell on the ground and the accused ran away from the spot. In the cross- examination by the counsel for the accused, this witness has deposed that Geetabai, the mother of the 13 accused had picked up quarrel regarding collection of water from the public tap.
12. The argument of the learned counsel for the accused is that PWs.4, 6 and 10 are related to each other and they are interested witnesses. As such, they are deposing falsely against the accused in connection with previous enmity between the mother of the accused and the mother of deceased Ravi in connection with collection of tap water.
13. However, this PW.4 has deposed against the accused and PW.6 has half-heartedly supported the version of the prosecution having seen the accused quarrelling with the deceased. However, in the cross- examination, though he has admitted that he has not seen the accused quarrelling, but the fact remains that these PWs.4 and 6 were going together. That speaks to the fact that these people have witnessed the incident. PW.10 being the father of the deceased of course, he has 14 reached the scene of incident and also when he was in the house, accused came near the house of this complainant. On hearing the cry of the deceased, complainant-mother of the deceased went to the spot. The evidence of PW-10, the father of deceased is shown to be deposing in the natural course to the effect that accused taking the deceased and accused No.1 squeezing the testicles of the deceased. This speaks to the fact that the accused No.1 has caused the death of the deceased with an intention and motive. Though the cause of death is due to squeezing of testicles and also the incident of quarrel that occurred between the accused and the deceased in connection with the previous dispute between the mother of the deceased and the mother of the accused regarding collecting water, there is sufficient material on record to hold the accused guilty of the offence as alleged and the prosecution has proved it beyond reasonable doubt. Rightly, the accused have been convicted and sentenced 15 by the learned Sessions Judge. The Sessions Judge has also taken lenient view in sentencing the accused for the offences punishable under Sections 304 Part-II of IPC so also for the offence punishable under Sections 504 and 324 of IPC against this accused No.2 as well. There is no illegality or perversity in the order of the learned Sessions Judge convicting and sentencing the accused.
14. Accordingly, appeal is dismissed. It is for the accused to surrender before the Sessions Court to serve the remaining period of sentence. However, the accused are entitled for the benefit of set-off under Section 428 of Cr.P.C.
Sd/-
JUDGE nsp