Karnataka High Court
C K Mallikarjuna vs The State Of Karnataka on 22 November, 2017
Bench: Ravi Malimath, John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 22ND DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.397 OF 2012
BETWEEN:
SRI C.K.MALLIKARJUNA
S/O KENCHAPPA,
AGED ABOUT 27 YEARS,
OCCUPATION:GRAMA ASSISTANT,
MELANAHALLI CIRCLE,
C.N.HALLI TALUK,
R/O AMBEDKAR NAGAR,
C.N.HALLI TOWN. ... APPELLANT
(BY SRI R.B.CONTRACTOR AND SRI M.G.CONTRACTOR,
ADVOCATES)
AND:
THE STATE OF KARNATAKA
BY CHIKKANAYAKANAHALLI POLICE
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU. ... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
2
THIS CRL.A IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE IMPOSED BY THE
PRESIDING OFFICER, FAST TRACK COURT, TIPTUR IN
S.C.NO.227 OF 2010 DATED 6.2.2012 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302, 392 READ WITH 397 AND 506 OF
IPC. APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
LIFE IMPRISONMENT AND FINE OF RS.25,000/- IN
DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE
IMPRISONMENT FOR FURTHER PERIOD OF SIX MONTHS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF
IPC. APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 7 YEARS AND FINE OF
RS.10,000/- IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO SIMPLE IMPRISONMENT FOR FURTHER PERIOD
OF THREE MONTHS FOR THE OFFENCE PUNISHABLE
UNDER SECTION 392 READ WITH 397 OF IPC AND
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR TWO YEARS AND FINE OF
RS.5,000/- IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO SIMPLE IMPRISONMENT FOR FURTHER PERIOD
OF ONE MONTH FOR THE OFFENCE PUNISHABLE UNDER
SECTION 506 OF IPC. ALL THE SENTENCES SHALL RUN
CONCURRENTLY.
*****
THIS CRL.A. COMING ON FOR FINAL HEARING THIS
DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT
The case of the prosecution is that on 16-6-2010 at about 3.00 p.m., in the lands of PW.1 Basavaraju, PW.2 and his mother were proceeding thereon for grazing their 3 cattle. At that time, they heard the shouting voice of the deceased and she was screaming. Immediately, PW.2 and his mother ran to the said place. They saw the accused and the deceased thereof. After the accused saw PW.2 and his mother, he assaulted on two occasions with a chopper on the back side of the deceased. She fell down. He snatched the gold Mangalya chain from her neck. The accused threatened PW.2 and his mother that if they inform this incident to anyone they both will suffer the same result. Thereafter, the accused ran away from the scene by holding a sickle in his hand by riding his Hero Honda Two wheeler. Blood was flowing from the head of the deceased. PW.2 immediately went to his house and informed his father PW.1 as well as others whom he met on the way. They called for an Autorickshaw and took the deceased to the Government hospital. She was shifted to NIMHANS hospital at Bengaluru. She succumbed to the injuries on 24-6-2010. Based on the complaint lodged by PW.1, a case was registered against the accused in Crime 4 No.102 of 2010 before the Chikkanayakanahalli police station. The investigation was taken up. A charge sheet was filed. In order to prove its case, the prosecution examined 15 witnesses and marked 23 Exhibits and 11 Material Objects. The defence examined DW.1 - the Doctor in support of its case. The accused pleaded not guilty and claimed to be tried. By the impugned Judgment, the accused was convicted for the offence punishable under Section 302 IPC and sentenced to life imprisonment and imposed a fine of Rs.25,000/- and in default of payment of fine to undergo further Simple Imprisonment for a further period of 6 months. He was convicted for the offence punishable under Section 392 read with Section 397 of IPC and was sentenced to undergo rigorous imprisonment for 7 years and a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of 3 months. He was also convicted for the offence punishable under Section 506 IPC and sentenced to undergo rigorous imprisonment 5 for two years with fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for one month. Aggrieved by the same, the accused has filed this present appeal.
2. Sri R.B.Contractor, learned counsel appearing for the appellant submits that the impugned order of the trial court is erroneous and liable to be set aside. That the trial court failed to consider the material and evidence on record. That the prosecution has failed to prove any motive for the commission of the offence. That the prosecution has not come out with clean hands. That even though there were other eye witnesses to the incident, they have not been examined before the Court. That the recoveries made at the behest of the accused are too minimal which does not warrant commission of an offence. Hence, he pleads that the appeal be allowed.
3. On the other hand, Sri Vijayakumar Majage, learned Additional State Public Prosecutor, defends the 6 impugned Judgment. He contends that the evidence of the eye witness PW.2, is clear and cogent. He has seen the accused assaulting the deceased. Nothing worthwhile has been elicited in his cross-examination to disbelieve him. That the examination of other witnesses is wholly irrelevant. The prosecution has established its case beyond all reasonable doubt. That the motive for the commission of the offence is that it was a murder for gain. That the receiver has also supported the case of the prosecution. That the quantum of gold seized at the behest of the accused is of no consequence. The fact is that the eye witnesses have seen the accused snatching away the gold Mangalya chain and the gold has been recovered from the receivers. Hence he pleads that there is no error that calls for any interference. Consequently, the appeal requires to be dismissed.
4. Heard learned counsels and examined the records. PW.1 is the father of PW.2. He has stated in his 7 evidence that on 16-6-2010 his son PW.2 came and narrated the incident to him. PW.2 is an eye witness to the incident. PW.2 informed his father - PW.1, of the incident. He went to the spot and saw that the deceased had fallen down in a pool of blood. He shifted her to the Chikkanayakanahalli hospital and thereafter sent her to NIMHANS hospital, Bengaluru. Thereafter, he lodged a complaint in terms of Ex.P-1.
5. PW.2 is the eye witness. He has narrated that on 16-6-2010 he and his mother were grazing cattle in their lands and at that time they heard the shouting voice and screaming of the deceased. Immediately, he and his mother ran to the said place and on seeing them, the accused assaulted twice with a sickle on the back side of the deceased and the deceased fell down. Then the accused snatched the gold Mangalya chain from her neck and ran away from the place. In the cross-examination, nothing worthwhile has been elicited to disbelieve the said 8 statement. It is only extracted that the Doctor did not give any opportunity to PW.2 to tell him about the history of the injuries. Immediately on seeing the deceased being brought, the Doctor at Chiklkanayakanahalli said that the deceased must be taken to NIMHANS and therefore there was no time to get the history and other facts which led to the assault. That the Doctor had put a bandage on her head and administered glucose and referred her to NIMHANS hospital. We do not find anything worthwhile in the cross-examination of PW.2 to disbelieve his statement.
6. PW.3 is the driver of the Autorickshaw who took the deceased from the place of incident to Chikkanayakanahalli. The Doctor administered initial treatment to the deceased at Chikkanayakanahalli hospital. Thereafter, he was taken to NIMHANS.
7. PW.4 is the panch witness to the spot Mahazar. 9
8. PW.5 is the Assistant Engineer of the PWD Department, who has drawn the sketch of the scene of the offence.
9. PW.6 is the owner of Mathaji Jewellers and Bankers. He has stated that on 16-6-2010 at about 4.00 p.m. to 5.00 p.m. the accused came there and pledged the gold articles with him and asked for Rs.500/- in cash. He pledged the gold balls weighing about 900 milligrams. He enquired as to his name and address, wherein the accused stated that his name is C.K.Manoj and that he is a resident of Kondly Cross. Thereafter, he gave a receipt for Rs.525/- to the accused. The same is marked as Ex.P-7. He identified the accused as the person who sold him the gold articles. He has also identified the gold balls which were marked as MOs. 5 and 6. He is also the signatory to the Mahazar Ex.P-5. Nothing worthwhile has been elicited to disbelieve the evidence of the receiver. 10
10. PW.7 is also a panch witness to Ex.P-9 and the seizure Mahazar wherein MOs. 7 to 9 were seized from the person of the accused. He is also a witness to the seizure of the shirt and sweater of the accused in terms of MOs. 10 and 11 as well as MO.3 two wheeler of the accused. Ex.P-7 is the very receipt which was seized from the person of the accused, when he was arrested and searched.
11. PW.8 is also a panch witness to seizure as well as MOs 5 and 6.
12. PW.9 is the panch witness to the recovery Mahazar MO.4 namely, the chopper which has been recovered at the behest of the accused.
13. PW.10 is a panch to the Inquest Ex.P-14. PW.11 is the Doctor who the conducted the autopsy and submitted his report in terms of Ex.P-15 as well as the report relating to the weapon used in the commission of the offence in terms of Ex.P-16. In the post mortem 11 report the Doctor has stated that he noticed 5 injuries. The injuries were to the right fore arm, to the left leg, a cut wound in the mid parietal, cut wound to the left temporal and laceration of the right temporal region. His opinion as to the cause of death is that it is due to severe head injury causing cardio respiratory arrest. He has stated that the injuries could have been caused by chopper MO.4.
14. PW.12 is the daughter of the deceased. She has identified the gold ornaments of the deceased in terms of MOs. 5 to 9. She has stated in her evidence that after the assault of the deceased, the deceased had lost consciousness.
15. PW.13 is the PSI who received the death memo in terms of Ex.P-17 and who made a request to change the charges to Section 302 of IPC.
16. PW.14 is the ASI who received the complaint and registered the FIR. PW.15 is the Investigating Officer. 12
17. Based on these evidences the trial court was of the view that the prosecution has proved its case beyond all reasonable doubt.
18. The evidence of the eye witness with regard to the assault and theft of gold ornaments has been proved. The evidence let-in by the eye witness has not been shaken in any manner by the defence. Therefore, the case against the accused is proved so far as Section 302 of IPC is concerned. So far as the offence under Sections 392 and 397 IPC is concerned, the evidence of the eye witness would indicate that after the accused assaulted the deceased on a number of occasions, he snatched MO.9 chain which was tied around her neck and fled from the scene. The receiver who has been examined has also supported the case of the prosecution. The receiver has identified the accused as the one who sold the gold articles to him on 16-6-2010 at about 4.30 p.m. to 5.00 p.m. Therefore, the evidence of the prosecution is clear and 13 cogent. We do not find any error committed by the trial court in accepting such evidence of the prosecution. The evidence of the receiver stands corroborated by the evidence of the eye witness. Nothing worthwhile is elicited from the evidence of the receiver to disbelieve him. He has in fact issued a receipt for having pledged the ornaments in terms of Ex.P-7. The said receipt was recovered from the possession of the accused, at the time he was searched by the police. Therefore, the evidence of the receiver stands corroborated even by the recovery of the receipt for having pledged the gold ornaments belonging to the deceased.
19. So far as Section 506 IPC is concerned, PW.2 has narrated that after he heard the cries of the deceased he ran towards her along with his mother. The accused had already assaulted the deceased. Even after PW.2 and his mother came to the scene, the accused continued to assault the deceased. He caused injuries on two to three 14 occasions on her. He took away the gold Mangalya chain. On seeing PW.2 as well as his mother, he threatened them. He told them that in case they state about this incident to anybody, he would commit the same offence on them also. The evidence of this eye witness has not been shaken in the cross-examination to this extent also. Therefore, the same stands attracted by the provisions of Section 506 of IPC.
20. It is the further contention that the mother of PW.2 was also an eye witness, however, the prosecution has not examined her. Therefore, the prosecution case is doubtful.
21. Such a contention cannot be accepted. Whether all the eye witnesses are examined or not is at the discretion of the prosecution. Whether they examine the witness or not cannot by itself render the prosecution case to be doubted. The Court would have to examine and consider the evidence led-in by the prosecution and 15 whether the same could be accepted or rejected. No adverse inference could be drawn in the facts and circumstances of the present case on the ground that the mother of PW.2 was not examined.
22. In support of its case, the defence examined DW.1 who is the Doctor at Chikkanayakanahalli hospital, namely, the hospital at the first instance. He has stated that he gave first aid to the injured and sent her to Nimhans Hospital. That blood was oozing out of her head. Therefore, it is contended that the prosecution has deliberately not examined him as their witness, only because, the Doctor has not stated the name of the accused in the medical report.
23. We are unable to accept such a contention. We have examined the evidence in detail. The Doctor states that in view of critical condition of the patient there was no time to go into all these aspects. The life of the patient had to be saved first. In view of the criticality of 16 the patient, First-Aid was administered and she was directed to be shifted to a bigger hospital for treatment. Therefore, only because, the Doctor who first attended her medically has not been examined cannot be a ground for the defence to contend that the prosecution case is doubtful. Hence, such a contention too, is unaccepted.
24. Under these circumstances, we have no hesitation to hold that there is absolutely no error committed by the trial court in coming to the conclusion that the accused is guilty of the offences punishable under Sections 302, 392, 397 and 506 of IPC. We do not find any perversity in the reasons assigned, in the appreciation of the evidence and the conclusion arrived at by the trial court. The findings recorded by the trial court are just and proper and in consonance with the facts and circumstances of the case.
25. At this stage, the learned counsel for the appellant contends that the accused has a wife and 17 daughter to look after. The child is aged 1½ years. Therefore, leniency may be shown. The learned State Public Prosecutor disputes the same. He contends that the child was born after the impugned Judgment has been passed. Therefore, no sympathy may be shown to him.
26. On hearing both counsels, we have re-
considered the reasons assigned by the trial court in passing the sentence. Based on the evidence of the eye witness and the relevant material, we are of the view that the trial court was rather lenient in imposing the sentence so far as Sections 392, 397 and 506 is concerned. We do not think that leniency, other than what has been shown by the trial court could be exercised by us. Based on the material on record, we do not find any infirmity in the sentence passed by the trial court.
27. For the aforesaid reasons, the appeal being devoid of merit, is dismissed. The Judgment of conviction and sentence passed by the trial court in S.C.No. 227 of 18 2010 dated 6-2-2012 is affirmed. The sentences to run concurrently.
SD/- SD/-
JUDGE JUDGE
Rsk/-