Karnataka High Court
Gattu Gopal Anr vs The State Of Karnataka on 5 October, 2023
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NC: 2023:KHC-K:7969
CRL.A No. 200039 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.200039 OF 2017
BETWEEN:
1. GATTU GOPAL
S/O HUSSAINAPPA
AGE:47 YEARS
OCC:LABOUR.
2. MAHADEVAMMA
W/O GATTU GOPAL
AGE:42 YEARS
OCC:LABOUR
BOTH ARE RESIDENT OF KASBE CAMP
RAICHUR.
...APPELLANTS
(BY SRI ISHWAR RAJ S. CHOWDAPUR, ADVOCATE)
AND:
Digitally signed
by SHILPA R THE STATE OF KARNATAKA
TENIHALLI REPRESENTED BY ADDL. S.P.P.
HIGH COURT OF KARNATAKA, KALABURAGI BENCH
Location: HIGH
COURT OF (THROUGH RAICHUR RURAL P.S.,
KARNATAKA RAICHUR)
...RESPONDENT
(BY SRI J. SHAHABUDDIN, H.C.G.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 16.02.2017 PASSED BY THE
PRINCIPAL DISTRICT & SESSIONS JUDGE, RAICHUR, IN S.C.
NO.103/2015 AND ACQUIT THE APPELLANTS/ACCUSED NOS.1 & 2.
THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER
DICTATION, THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.A No. 200039 of 2017
JUDGMENT
This appeal is filed by the appellants/accused Nos.1 and 2 under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') praying to set aside the judgment of conviction and order on sentence dated 16.02.2017, passed in Sessions Case No.103/2015, by the learned Principal District and Sessions Judge, Raichur (for short 'Trial Court'), convicting and sentencing them to undergo simple imprisonment for a period of ten years and to pay a fine of Rs.10,000/- each and in default, they shall suffer one month simple imprisonment for the offence punishable under Section 304 read with Section 34 of the Indian Penal Code, 1860, (for short 'IPC').
2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. The appellants are accused Nos.1 and 2 and the respondent is the complainant - State.
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3. The brief facts of the prosecution case are as under:
On 04.05.2015 at about 7.20 p.m., when accused No.1 and CW-9 quarreling among themselves in respect of altercation in Kasbe camp, Raichur, on the ground of dashing of bicycles between accused No.1 and son of the sister of Manikyamma (hereinafter referred to as 'deceased'), the husband of the deceased, Tayappa, came to the spot for pacifying the quarrel, at that time, accused No.2 came there, held and dragged the deceased by holding her tuft and accused No.1 kicked her below the abdomen, as such, she fell down on the wooden club and sustained severe injuries on the head, left leg and thigh and died due to the injuries on the same day at 7.45 p.m. Hence, the complainant lodged a complaint to the respondent - Police. On the basis of the complaint, the respondent - Police registered a case in Crime No.106/2015 for the offence punishable under Section 304 read with Section 34 of IPC.-4-
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4. The respondent - Police after investigation filed the charge-sheet against accused Nos.1 and 2 for the offence punishable under Section 304 read with Section 34 of IPC. After committal of the matter, the learned Sessions Judge after hearing the prosecution and accused persons, framed the charge, read over to the accused persons, they pleaded not guilty and claimed to be tried. The accused persons did not choose to adduce any defence evidence.
5. The prosecution in order to prove its case, examined in all fourteen witnesses as PW-1 to PW-14, got marked 11 documents as per Exs.P.1 to P.11 and got marked material objects as per MOs.1 to 3.
6. The Trial Court based on the above facts, framed the following point for consideration:
i. Whether the prosecution proves beyond reasonable doubt that accused persons herein, on 04.05.2015 at 7.20 p.m. assaulted the deceased and accused No.2 held her tuft and -5- NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 kicked her below stomach who fell down on the wooden club and sustained severe injuries over the head, left leg and thigh and died on the same day at 7.45 p.m. thereby committed an offence punishable under Section 304 read with Section 34 of IPC. ?
7. The Trial Court, considering both oral and documentary evidence, recorded a finding that the prosecution proved its case beyond reasonable doubt that, accused Nos.1 and 2 quarreled with the deceased, assaulted her with hands and legs, accused No.1 assaulted on her abdomen and thus, she fell on the wooden club and sustained head injury and later, succumbed to the injury and thereby, they committed the offence punishable under Section 304 read with Section 34 of IPC and accordingly, sentenced them to undergo imprisonment, as stated supra. Aggrieved by the impugned judgment of conviction and order on sentence passed by the Trial Court, the appellants have filed this appeal.
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8. Heard the arguments of the learned counsel for the appellants, the learned High Court Government Pleader for respondent - State and perused the material available on record.
9. The learned counsel for the appellants submitted that, the judgment of conviction and order of sentence passed by the Trial Court is contrary to the facts of the case, evidence on record and against the certain principles of law; the Trial Court has committed a serious error in convicting the appellants without properly appreciating the evidence in its right prospective manner. He further contended that, PW.1-Narasimhalu, in his cross-examination, has clearly admitted that, he is an illiterate and the contents of the complaint are not known to him and thus, complaint - Ex.P.1 in this case, carries no weight. Further, PW.4-Padmamma, sister of the deceased, who is an eyewitness to the incident, deposed that accused No.1 assaulted decease Manikyamma with stick on her stomach and she also spoken to about the head -7- NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 injuries and hence, there is contradictory evidence in the testimony of PWs.1 and 4 and such contradictions, go to the very root of the case, under such circumstances, the trial Court ought to have extended the benefit of doubt in favour of the appellants.
10. Learned counsel further contended that, the Trial Court relied upon the testimony of an interested witness only and convicted the appellants without there being any further corroboration by an independent witness, which is an error committed by the Trial Court. Further, the sentence of imprisonment imposed on the appellants are also on the higher side, exorbitant and the Trial Court ought to have considered the age of the appellants and other integrate circumstances to pass the lesser sentence. Hence, he prayed to allow the appeal.
11. Learned counsel for the appellants has relied upon the following decisions:
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 i. Jony Gulabshaik v. State of Maharashtra reported in 1969 (2) UJ 598 SC;
ii. Javed Alam v. State of Chattisgarh and another reported in (2009) 3 Crimes 119.
12. Per contra, the learned High Court Government Pleader contended that, the Trial Court has rightly convicted the accused persons; accused No.1 assaulted the deceased on her abdomen with force and hence, she fell on the wooden club, thus, sustained severe injuries on her head and she died on account of the head injuries on spot itself and the said incident has been witnessed by PW.7- Venkatesh and PW.8-Swamy. He further submits that, the accused persons have taken law into their hands and caused the death of deceased Manikyamma. He further submits that, the evidence of PWs.7 and 8 corroborate with the medical evidence. Therefore, he sought to dismiss the appeal.
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13. In view of the rival contentions urged by the learned counsel for the parties, the point that arises for my consideration is:
"Whether accused Nos.1 and 2 have made out a case to interfere with the impugned judgment of conviction and order on sentence passed by the Trial Court ?"
14. I have given my careful consideration to the arguments canvassed by the learned counsel for the parties and perused the entire material on record and the original documents carefully.
15. This Court, being the Appellate Court, in order to re-appreciate the evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.
a. PW.1 - Narasimhalu, son of the deceased, has stated that, on the date of the alleged incident, he had been to his land and he came to his house at about 8.00 p.m. and he came to know about the incident
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 through Sri. Venkatesh (PW.7). Hence, he saw the dead body of his mother and later, he went to Police Station and lodged the complaint as per Ex.P.1. Thereafter, the Police visited the spot and conducted panchanama and took photographs as per Ex.P.2. In his cross-examination, he admits that, he is an illiterate. The distance between his house and his land is about 2 kms and he does not know the contents of Ex.P.1-complaint. However, he denied the suggestions that, the deceased was alcoholic and due to the said reason, she died, but, the said suggestions were denied by him.
b. PW.2 - Kamalamma, younger sister of the deceased, in her evidence, she stated that, the Police conducted inquest panchanama in her presence as per Ex.P.3 and she saw visible injuries on the person of the deceased and she came to know that, the accused persons committed murder of her sister - deceased Manikyamma. In the cross-examination, she admits that, she does not know the date of drawing inquest panchanama.
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 c. PW.3 - Anjineyya is witness to inquest panchanama, in his evidence, he stated that, the Police conducted inquest panchanama on the dead body of deceased Manikayamma in his presence as per Ex.P.3 and he saw injuries on the head of the deceased. In the cross- examination, he admits that, he does not know the person who prepared the inquest panchanama and he affixed his signature on the inquest panchanama as per the instructions of the Police and rest of the suggestions were denied by him.
d. PW.4 - Smt. Padmamma is the elder sister of the deceased, in her evidence, she stated that, on the day of the alleged incident at 7.00 p.m., herself, Kamalamma and the deceased were sitting near the house of the deceased and at that time, accused No.1 and Swamy (son of sister of deceased) were quarreling, hence, they went near the house of accused No.1 and the deceased asked accused No.1 as to why he was quarrelling with said Swamy, at that time, Kamalamma took Swamy away, thus, accused
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 No.1 assaulted the deceased with firewood on the head, thus she sustained bleeding injuries from the nose and ear and accused No.2 held her tuft and dragged her. The deceased had died at the spot. In the cross-examination, she denied the suggestions made by learned counsel for the accused, but she admits that, the Police have not obtained her left thumb impression on the documents.
e. PW.5 - Urukundappa, a witness to spot panchanama, in his evidence, he stated that, the Police conducted spot panchanama as per Ex.P.6, in his presence and took photographs as per Ex.P.2. However, he turned hostile to the case of the prosecution as to seizure panchanama (Ex.P.7) conducted by the Police in his presence.
f. PW.6 - Basavaraj, a witness to spot and seizure mahazar. He also completely turned hostile to the case of prosecution. In the cross-examination, he denied to have affixed the signatures on the spot and seizure mahazar as per Exs.P.6 and 7 respectively.
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 g. PW.7 - Venkatesh is the son in law of the deceased and an eyewitness to the incident, in his evidence, he stated that, on the day of the incident at about 7.15 p.m., accused No.1 and one Swamy were quarrelling with each other in respect of cycle in front of the house of accused No.1, at that time, the deceased, PW.4-Padmamma, Kamalamma went to the house of accused No.1 and objected accused No.1 as to why he was quarreling with one Swamy, at that time, accused No.2 held the tuft of the deceased and accused No.1 assaulted on the abdomen of the deceased with his leg and hence, she fell on wooden club and sustained head injury and she died on the spot. Therefore, he informed PW.1- Narasimhalu, son of the deceased, over phone.
h. PW.8 - Swamy is another eyewitness to the incident, who reiterates the averments made in the evidence of PW.7.
i. PW.9 - Dr. Basavaraj Patil, who conducted post- mortem examination, in his evidence, he stated that, on
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 05.05.2015, he conducted post-mortem examination on the body of the deceased Manikyamma and on examination, he noticed injuries on her person and as per his opinion, the death was due to sub-arachnoids hemorrhage, as a result of bleeding injury. Hence, he issued post-mortem examination report as per Ex.P.8. In the cross-examination, he admits that, during post- mortem examination, there were no injuries found on abdomen. He further admits that, he did not collect viscera. He further admits that, in case, if a person consume alcohol and fall on sharp object or hard object, death could be occurred.
j. PW.10 - Jayaram is a witness to inquest panchanama, in his evidence, he stated that, the Police conducted inquest panchanama on the dead body of the deceased as per Ex.P.3. In the cross-examination, he admits that, he has no knowledge about the proceedings conducted and he simply affixed his signature on Ex.P.3.
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 k. PW.11 - Umesh, Sub-Inspector of Police, who received the complaint and registered the case in crime No.106/2015 and submitted F.I.R. to the Court.
l. PW.12 - Y. Abuzal Gafari, Junior Engineer, PWD, who visited the spot to drew sketch as per Ex.P.10.
m. PW.13 - T. Chana Basavanna, Junior Engineer, in his evidence, he stated that on 08.05.2015, the Police gave requisition to furnish report regarding supply of power to Kasbe camp village, Raichur, on 04.05.2015. Hence, after verifying the log book, he issued report that there was proper supply of electricity on 04.05.2015 in the Kasbe camp village. In the cross-examination, he admits that, he has not furnished log book extract before the Court and the Police did not secure a copy of such log book.
n. PW-14 - K. Basavaraj, Sub-Inspector of Police, who investigated the matter and filed the charge-sheet before the Court.
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16. Based on the aforesaid material on record, the learned Sessions Judge proceeded to convict the appellants for the offence punishable under Section 304 read with Section 34 of the IPC.
17. A careful perusal of the complaint dated 05.05.2015, lodged by PW.1-Narasimhalu, depicts that on 04.05.2015 at 7:20 p.m., accused Nos.1 to 2 picked up quarrel with his mother - Manikyamma and aunt - Kamalamma, at that time, accused No.2 held the hair of the deceased and accused No.1 assaulted with his leg on the abdomen of deceased, thus, the deceased fell down on the wooden club and she sustained head injury and at about 7:45 p.m., she succumbed to the injuries.
18. In order to substantiate the contentions of the prosecution, the prosecution examined three eyewitnesses, viz., PWs.4-Padmamma, 7-Venkatesh and 8-Swamy. As per the evidence of PW.4, accused No.1 assaulted with stick on the head of the deceased and accused No.2 held her tuft. Whereas, as per the evidence
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 of PWs.7 and 8, accused No.1 assaulted on abdomen of the deceased with leg, thus, deceased fell down on the wooden club and accused No.2 held her tuft. It shows that, there is contradictory evidence of PW.4 and PWs.7 and 8 as to the assault made by accused No.1, thus, she fell down on the wooden club and later, she succumbed to injuries. In the cross examination of PW.8, he admitted that, the deceased was under the influence of alcohol, at the time of incident. It is also clear from the consistent evidence that, though the deceased was asked by the accused persons, to go ahead, but, the deceased still stood firm and continued to abuse accused persons. It is also clear that accused No.1 gave blow to the deceased on the abdomen with leg, thus, she fell down on the wooden club and she sustained head injury.
19. As per the Post-Mortem Examination Report- Ex.P.8, the deceased had suffered subarachnoid hemorrhage present over right cerebral hemisphere and as per opinion of the Doctor, the death is due to
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 subarachnoid hemorrhage as a result of head injury sustained.
20. On perusal of the medical evidence, as well as the evidence of Doctor, no question was put forth either by the prosecution or by the defence, to ascertain the nature of injury. In other words, no effort was made to elicit any opinion as to whether the injury was grievous or not.
21. As per the Legal and Medical Dictionary in Volume - II, Sub-arachnoids hemorrhage, is described as 'bleeding in the space between the brain and the surrounding membrane (subarachnoid space)'.
22. On perusal of the Post-Mortem Examination Report and evidence of PW.9-Doctor, he has not described any fracture of occipital bone and he has not stated anything about the temporo-parietal region was broken or not.
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23. Then, the question that arises is whether the accused persons are guilty under Sections 304 or 325, or 323 of IPC?
24. In order to attract Section 304 of IPC, the accused must be deemed to know that, as a result of such forcible push, death of the deceased would have been caused. The accused must be deemed to know that the deceased was likely to fall on sharp wooden club kept in front of the house of accused No.1 and that, the force which he was actually used was likely to result in fatal injury to the deceased. Therefore, though the accused did not intend to cause the death of the deceased and did not intend to cause her injuries sufficiently in the ordinary course of nature to cause her death. Accused No.1 must be posted with the knowledge that the death was likely to result in the circumstances, in which the injury was caused by accused No.1 to the deceased. It is very rarely that, if a man is pushed and he falls on a particular object, the occipital bone gets fractured. Here, it is perhaps due to
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 drunken condition of the deceased she fell down, she could not avoid her head falling on the wooden club. The death has been occurred as accused No.1 assaulted her on abdomen with force, thus, she fell on the wooden club.
25. In case of Mohd. Rafiq vs. State of M.P (2021) 10 SCC 706, the Hon'ble Apex Court at Para 17 held as under;
"Considering the statutory provisions laid down in IPC and the law on the point, we find that the present case falls into the category of a culpable homicide not amounting to murder falling under section 304 PartII IPC for the following reasons:
(i) There was no premeditation of mind to commit murder.
(ii) All the accused were admittedly not armed when they stopped the vehicle of the deceased and his friends and compelled them to alight from the same.
(iii) It was during the verbal altercation at that stage that the three accused picked up the weapon of assault namely, sticks of
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 casuarina tree and a brick from the road side.
(iv) Single blow was given to the deceased by the accused nos.1 and 2. 30
(v) The case set up for exhortation to kill the deceased has not been found to be proved.
(vi) Both the groups consisted of young men.
(vii) The High Court found that there was no unlawful assembly formed with a common object and accordingly had acquitted three other accused and also the present appellants from the charge of unlawful assembly under section 149 IPC.
(viii) The appellants have been convicted with the aid of section 34 IPC.
Partly allowing the appeal, the bench held that the appellants would be entitled for acquittal under section 302 IPC but would be liable to be convicted under section 304 Part II IPC. Rest of the conviction upheld by the High Court and the sentence for the charges under sections 341, 323, 324 and 427 read with section 34 IPC is maintained. For the offence under Section 304 Part II IPC, the bench sentenced them for the period already undergone by them."
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26. The similar ratio is also laid down in case of Ajmal vs State of Kerala, in Crl. A-1838 of 2019 dated 12th July 2022.
27. The Hon'ble Apex Court in the case of LAKSHMI CHAND AND ANOTHER v. STATE OF UTTAR PRADESH reported in (2018) 9 SCC 704, in a similar facts and circumstances of the case, convicted the accused persons for the offence punishable under Section 304 of IPC and modified the imprisonment from eight years to two years.
28. In the instant case, the occurrence, undoubtedly, had taken place on a spur of the moment without pre- meditation. In fact, the deceased and her sister, Padmamma, had been to the house of accused No.1 in order to question as to why they were quarrelling with Swamy, at that time, accused Nos.1 and 2 picked up quarrel with the deceased and accused No.2 held the deceased tuft, and accused No.1 assaulted the deceased with leg on her abdomen and the deceased fell down on the wooden club. It shows that, the appellants had no
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 common intention to kill or had knowledge that the death was likely to ensure.
29. The deceased succumbed to injury on the head. Admittedly, absence of any common intention makes the appellants individually answerable and therefore, conviction against accused No.1 under Section 304 of IPC calls for no interference. Considering the fact that, the occurrence took place on a spur of moment, the assault was not made on the vital part of the body, in fact, accused No.1 assaulted the deceased on her abdomen and in turn, she fell down on the wooden club, sustained head injury and succumbed to the injuries and in view of the ratio laid down in the case of Lakshmi Chand (supra) and the facts and circumstances in the present case, it is just and necessary to modify the period of imprisonment from ten years to two years, in so far as accused No.1 is concerned.
30. So far as accused No.2 is concerned, there is no clear, corroborative and convincing evidence against
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 accused No.2 that, she caused injuries on the person of deceased Manikyamma, thus, there is no corroborative evidence to convict accused No.2 for the offence punishable under Section 304 of IPC and hence, the judgment of conviction and sentence passed by the Trial Court against accused No.2 is liable to be set aside.
31. Hence, I proceed to pass the following;
ORDER i. Criminal Appeal is partly allowed; ii. Appellant No.2/accused No.2 is acquitted of the charges levelled against her for the offence punishable under Section 304 read with Section 34 of the Indian Penal Code, 1860;
iii. So far as the judgment of conviction and order on sentence dated 16.02.2017 passed in Sessions Case No.103/2015 by the Principal District and Sessions Judge, Raichur, in so far as appellant No.1/accused No.1 is modified, from 10 (ten) years to 2 (two)
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NC: 2023:KHC-K:7969 CRL.A No. 200039 of 2017 years. Hence, accused No.1 shall undergo simple imprisonment for a period of 2 (two) years. However, the fine imposed by the trial Court is maintained; iv. Appellant No.1 is entitled to the benefit of set off as contemplated under Section 428 of the Code of Criminal Procedure, 1973, and v. The Trial Court is directed to secure appellant No.1 to serve remaining part of the imprisonment. Registry is directed to return the record to the Trial Court, forthwith.
Sd/-
JUDGE NE (Paragraph No.1 to 15) KVK (Paragraph No.16 to 29) List No.: 1 Sl No.: 52