Karnataka High Court
Ravi S/O Dundappa Mulagund vs Karabasappa S/O Halappa Mulagund on 24 August, 2020
Bench: B.M.Shyam Prasad, V.Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
Dated this the 24th day of August 2020
Present
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
and
THE HON'BLE MR. JUSTICE V. SRISHANANDA
Criminal Appeal No.100260 of 2015
Between
Ravi,
S/o Dundappa Mulagund,
Age: 28 years,
Occ: Agriculture,
R/o. Guddada Hosalli,
Tq: Ranebennur,
Dist: Haveri. ...Appellant
(By Sri. M.B.Gundawade, Advocate)
And
1. Karabasappa,
S/o Halappa Mulagund,
Age: 71 years,
Occ: Agriculture,
R/o. Guddada Hosalli,
Tq: Ranebennur,
Dist: Haveri.
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2. Renukawwa,
S/o Karabasappa Mulagund,
Age: 45 years,
Occ: Housewife,
R/o. Guddada Hosalli,
Tq: Ranebennur, Dist: Haveri.
3. Irappa,
S/o Karabasappa Mulagund,
Age: years,
Occ: Agriculture,
R/o. Guddada Hosalli,
Tq: Ranebennur, Dist: Haveri.
4. Sate of Karnataka,
By State Public Prosecutor,
High Court of Karnataka,
Dharwad Bench, at Dharwad,
Through Halageri P.S., ...Respondents
(By Sri. Avinash Banakar, Advocate for R1 to R3
Sri. V.M.Banakar, Addl. SPP for R4)
This Criminal Appeal is filed under Section 372 of
the Code of Criminal Procedure, 1973, praying to call
for the records from II Additional District and Sessions
Judge, Haveri (sitting at Ranebennur) in respect of case
bearing S.C. No.53/2011 and to pass a judgment of
conviction and thereby convict the accused/respondent
Nos.1, 2 and 3 for the offences under Sections 302 read
with 34 and 506 read with 34 of the Indian Penal Code
and thereby set aside the judgment of acquittal passed
by the trial Court.
This Criminal Appeal coming on for Hearing, this
day, B.M. SHYAM PRASAD., J, delivered the following:
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JUDGMENT
This appeal is filed by the complainant impugning the judgment dated 10.09.2015 in S.C. No.53/2011 on the file of the II Additional District and Sessions Judge, Haveri (sitting at Ranebennur) - for short, 'the Sessions Court' whereby, the respondents are acquitted of the charges for the offences punishable under Sections 323, 324, 504, 506 and 302 read with Section 34 of the Indian Penal Code (for short, 'IPC').
2. The appellant-complainant and the respondents are relatives, and the respondents have stood trial for the aforesaid offences punishable under Sections 323, 324, 504, 506 and 302 read with section 34 of IPC because the appellant-complainant has filed the first information with the jurisdictional police on 14.02.2011 alleging that the respondents assaulted his father, Sri. Dundyappa Mulagund (referred to as 'the deceased') The jurisdictional police has registered FIR 4 in Crime No.31/2011 for the offences under 323, 324, 504, 506 read with Section 34 of IPC. However, the jurisdictional police has filed charge sheet against the respondents for the said offences including the offence punishable under Section 302 of IPC because the deceased died on 29.3.2011.
3. The prosecution's case against the respondents is based on certain admitted facts and certain assertions which are disputed. It is admitted that the first respondent is the elder brother of the deceased, and the second and third respondents are the wife and children of the first respondent. The deceased and the respondents are residents of Guddadahosalli owning agricultural lands in this village and also in Hirebudhihalla, and there were, as of the date of occurrence viz., 14.02.2011, differences between these two brothers over the use of tube-wells in their lands and the service of electricity to the water pumps 5 installed to draw water from tube-wells. The complainant, the deceased's son, admits that the proceedings in these regards were pending as of the date of occurrence.
4. There is also no dispute that the deceased was taken to Government Hospital, Ranebennur on 14.02.2011 and from there, he was shifted to Government Hospital, Davanagere, and on the same day, he was shifted to NIMHANS, Bangalore. The deceased was an inpatient with NIMHANS, Bangalore. The deceased was again shifted to S.S.Hospital, Davanagere, and he breathed his last there on 29.03.2011. The deceased's demise, as certified by the doctor who conducted post-mortem at S.S Institute, Davanagere, is because of scepticemic shock because of infection as a consequence of blunt injury sustained in the head.
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5. The prosecution (and the appellant -
complainant) contends that on 13.02.2011, at about 8.30 p.m., the respondents picked up quarrel with the deceased over the use of tube-wells. The respondents were abusive and threatening. The respondents threatened the deceased that they would do away with his life. The acquaintances diffused the quarrel. However, again on 14.02.2011, at about 8.00 a.m., the respondents again picked up quarrel with the deceased abusing him. The first and the second respondents assaulted the deceased with their hands and the third respondent assaulted him on his head with a stick. This incident was witnessed by common acquaintances who chastised the respondents, and because the deceased was injured, they secured an ambulance. The deceased was shifted to Government Hospital, Ranebennur, and the deceased's son, the appellant, lodged the first information with the jurisdictional police at about 10.30 a.m. The deceased succumbed to the 7 injury suffered on 29.03.2011 and therefore, the respondents are guilty of offences as aforesaid.
6. The first respondent, who was arrested on 20.04.2011, was enlarged on bail by the learned Magistrate on 29.04.2011. The second respondent was granted anticipatory bail. The jurisdictional police filed charge sheet against the respondents as aforesaid in the month of June, 2011. The learned Magistrate, after securing the presence of the accused, including the third respondent who was in judicial custody, committed the case for trial by order dated 03.08.2011 after ensuring compliance with the provisions of Section 207 of Cr.P.C. After the committal order, the third respondent was also granted bail. The Sessions Court, being of the opinion that there was a prima facie case against the respondents, framed separate charges against the respondents for the offences punishable 8 under Section 506 read with Section 34 of IPC and Section 302 read with Section 34 of IPC.
7. The prosecution examined in all 13 witnesses including the complainant and the relatives and acquaintance of the deceased/complainant. The doctor, Dr. Dharmaraya Ishwar Ingale, who conducted the post-mortem, is examined P.W.11, the Investigating Officers, Sri Krishna and Sri. K.C.Giri, are examined as P.W.12 and P.W.13. The panch witnesses, Sri. Basavaraj Gangappa Mulagund (for the Inquest Panchanama - Ex.P.1) is examined as P.W.1. Sri. Karabasavanagouda and Sri. Irannagowda Shivamurtheppa Kallalli (for the spot panchanama - Ex.P.9) are examined as P.W.7 and P.W.8.
8. The prosecution has relied upon exhibits such as Inquest Panchanama, Photographs, Spot Panchanama, the first information, FIR, Post-Mortem Report and the statements recorded those witnesses 9 who have turned hostile. The prosecution has also relied upon the deceased's statement recorded on 18.02.2011, and this statement is marked as Exhibit P.14. The respondents, who have denied the incriminating material against them in their statement recorded under Section 313 of Cr.P.C., have not led any evidence.
9. The Sessions Court, considering the evidence on record, has opined that though it is established that the deceased died because of the head injuries as mentioned in Post-Mortem Report, the prosecution is not able to establish, beyond all reasonable doubt, that the respondents are responsible for the death of the deceased. The Sessions Court has acquitted the respondents of the charges against them also opining that the prosecution's case against the respondents is replete with material contradictions, and the material on record indicates that the deceased could 10 have died because of the injuries suffered by him when he fell down from a tractor while loading paddy.
10. The question for consideration in this appeal is:
Whether the Sessions Court's finding that the prosecution has not been able to prove beyond all reasonable doubt that the respondents are culpable of having committed the murder of the deceased is erroneous or unsustainable.
11. It is settled law that an appellate court sitting in judgement over an order of acquittal must necessarily seek an answer to the question whether the findings of the trial court are palpably wrong or manifestly erroneous or demonstrably unsustainable, and if the answer to the above question is in the negative, the order of acquittal should not be disturbed. In the present case, before this question is considered it would be necessary to mention certain peculiarities in 11 the case. According to the prosecution, Sri Dundayappa Mulagund was assaulted by the respondents on 14.2.2011, and on the very same day, he was shifted first to Government Hospital at Rannibennur and later to the Government Hospital at Davanagere. On the doctor's advice in this hospital, he was shifted to NIMHANS, Bangalore and he was an inpatient there for considerable time. The deceased, after being discharged from NIMHANS, Bangalore returned to his native place, but he was again shifted to SS Hospital, Davanagere where he died on 29.03.2011.
12. None of the medical records from these hospitals pertaining to the deceased's hospitalisation is produced. Given the assertion that the deceased died on 29.03.2011 because of the injuries suffered in an assault on 14.2.2011 after hospitalisation at multiple hospitals, the details of these hospitalization, the nature of injuries suffered as recorded in these hospitals and 12 the history of the injuries as related at the time of hospitalisation would have been crucial. In the circumstances, the question that would be inevitable is, has the prosecution deliberately withheld material information. Thus, there is undeniable doubt about the prosecution's case that the respondents are culpable of having committed the murder of the deceased.
13. The crucial witnesses insofar as the deceased's hospitalization as aforesaid are the appellant
- complainant (P.W.4), the deceased's brother, Sri. Shivaputrappa Halappa Mulagund (P.W.6) and a common acquaintance, Sri. Shanmukappa Hanmantappa Baramanagouda (P.W.5). The appellant- complainant (P.W.4) while stating that the respondents assaulted the deceased on 14.02.2011 has stated that he was not present when the deceased was shifted to the Hospital at Ranebennur or Bapuji Hospital at Davanagere or NIMHANS, Bangalore. He states that his 13 father was accompanied by his elder uncle, Sri. Shivaputrappa Halappa Mulagund (P.W.6) when he was shifted to NIMHANS, Bangalore, and his father also returned home after his hospitalization at NIMHANS, Bengaluru with his uncle by a car.
14. On the other hand, Sri. Shivaputrappa Halappa Mulagund (P.W.6), an elder brother of the deceased and a retired employee staying in Rannibennur, has stated that he called on the deceased when he was in the Government Hospital on 14.2.2011. He says that the deceased was taken to NIMHANS, Bangalore but does not say he accompanied him or looked after him. He further states that he met his brother, the deceased at home on his return from NIMHANS, Bangalore, but his brother was unconscious and his condition worsened within a day of returning. Therefore, the deceased was again shifted to the hospital at Davanagere.
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15. Interestingly, the appellant-complainant (P.W.4), contrary to this evidence by Shivaputrappa Halappa Mulagund, has stated that his father, the deceased was discharged from NIMHANS, Bangalore after six days because he was keeping well. The police called on his father and recorded his statement. The deceased's statement recorded under section 161 of Cr.P.C is dated 18.2.2011. This contradictory evidence by the deceased's son and brother further accentuates doubt in the prosecution's case.
16. The next witness is Sri. Shanmukappa Hanmantappa Baramanagouda (P.W.5). This witness states that he is not only a resident of the same village as the respondents and the deceased but is also a distant relative. This witness states that he stayed with the deceased for about eight days in the Hospital at Davanagere, but he is unable to say for how many days the deceased was hospitalised in NIMHANS Bengaluru 15 or whether his stay with the deceased was during the first hospitalization or the second hospitalization. This witness very significantly states that the deceased was shifted directly to the Hospital at Davanagere after he was discharged from NIMHANS, Bengaluru.
17. Sri Raju Shekhappa Barmhagoudru (PW 2), another relative of the parties, states that the deceased was taken by ambulance on 4.2.2011 and the deceased did not return back alive. Sri. Basavaraj Gangappa Mulagund (PW1), a nephew of the first respondent and the deceased being a son of one of their brothers, in his cross-examination submits that the deceased, after returning from Bengaluru, was working in field loading a tractor and he suffered injury when he fell down from the tractor. The appellant-complainant has also admitted in his cross-examination that the deceased had suffered head injuries because of a fall from a tractor while he was loading paddy. However, on the 16 question when the deceased fell from the tractor, he is not categorical.
18. In the considered opinion of this Court, if these witnesses were deposing truthfully, they could not have been so varied in their testimony about the deceased's hospitalisation or about his fall from a tractor while working in the field. These circumstances not only aggravate the doubt about when the deceased suffered injuries that became the cause of his death but also about the respondents causing such injuries.
19. The prosecution's case is that the third respondent assaulted the deceased on the nape of his neck with a stick and the deceased fell down suffering bleeding injuries. However, neither the blood stained clothes of Sri Dundayappa Mulagund nor bloodied soil have been seized. Therefore, the testimonies of the witnesses viz., Sri. Basavaraj Gangappa Mulagund (PW1), Sri Raju Shekkappa Barmhagoudru (PW 2) and 17 Sri. Shanmukappa Hanmantappa Baramanagouda (P.W.5) that there was some altercation between the respondents and the deceased on 13.2.2011 and on the next day on 14.2.2011 the respondents, acting with common intention, assaulted the deceased inflicting fatal injuries will have to be considered with circumspection.
20. Sri. Basavaraj Gangappa Mulagund (PW1) though speaks about the aforesaid incidents on 13.2.2011 and 0n 14.2.2011, he is categorical in his cross-examination that he has not witnessed the incidents. Similarly, Sri Raju Shekkappa Barmhagoudru (PW 2) after relating the incident to inculpate the respondents, states in his cross- examination that he has not personally seen the incidents. Sri Raju Dyavappa Nathenahalli (PW 3) has also said he is not an eyewitness. The essential drift of the evidence of the appellant-complainant (PW - 4) in 18 his cross examination is that he was not at the place of occurrence and he was at his residence which is at a distance of about a furlong from the place of occurrence. Therefore, his evidence would also be unreliable.
When the evidence on record is thus examined, this Court is of the considered opinion that the Sessions Court's conclusion that the prosecution has failed to prove its case against the respondents beyond all reasonable doubt does not suffer from any perversity or legal infirmity. Therefore, the appeal is dismissed Sd/-
JUDGE Sd/-
JUDGE Kms