Karnataka High Court
Sharanappa Dossakalappa Kadiwal vs The State Of Karnataka on 12 February, 2020
Bench: K.N.Phaneendra, Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
ON THE 12 T H DAY OF FEBRUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE K .N . PHA NEENDRA
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL APPEA L NO.100056/2015
BETWEEN:
SHARANAPPA DOS SAKALAPPA KADIW AL,
AGE: 43 YEARS , OCC. COOLIE,
R/O. KADIWAL, TQ. K USTAGI.
...APPELLANT
(BY SRI.GANGADHAR S. HOSAKERI &
SRI.BASAVAPRABHU S . HOSAKERI , A DVS.)
AND:
THE STATE OF KARNATAKA,
BY STATE PUBLIC PROSECUT OR,
GAJENDRAGAD POLICE STATI ON,
REP. BY SPP HIGH COURT OF KARNATAKA,
DHARWAD BEN CH, DHARWAD.
...RESPONDENT
(BY V.M.BANAKAR, ADDL. S .P.P.)
THIS CRIMINAL APPEA L IS FILED UNDER
SECTION 374( 2) OF CR.P.C. PRAYI NG TO ALLOW THE
PRESENT A PPEAL BY SETTING ASID E THE J UDGMENT
DATED 24.09.2012 PASSED BY THE HON'BLE DISTRICT
AND SESSIONS JUDGE, GADAG IN S.C. NO.57/ 2011
PUNISHABLE UNDER SECTI ONS 302 A ND 324 OF IPC.
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THIS CRIMINAL APPEAL COMI NG ON F OR
HEARING THIS DA Y, K.N .PHANEEND RA J., D ELIVERED
THE FOLLOWING:
JUDGMENT
The present appeal is preferred against the judgment of conviction and sentence passed by the District and Sessions Judge, Gadag in S.C. No.57/2011 vide judgment dated 24.09.2012. The Trial Court has convicted the appellant for the offences under Sections 302 and 324 of IPC and sentenced him to undergo imprisonment for life for the offence under Section 302 and three years simple imprisonment for the offence under Section 324 of IPC with fine of Rs.10,000/-, with default sentence of simple imprisonment of six months.
2. We have heard the arguments of Sri.Gangadhar S. Hosakeri, learned Standing Counsel for Karnataka State Legal Services Committee, Dharwad Bench, Dharwad for the appellant and Sri.V.M.Banakar, learned Additional SPP for the State.
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3. We have carefully perused the entire materials on record.
4. Before adverting to the material evidence on record, it is just and necessary to have the brief factual matrix of the case.
5. The accused Sharanappa is no other than the brother-in-law of the deceased Sharanappa. The deceased Sharanappa's sister by name Gouramma Kadiwal was given in marriage to the accused long back and they were blessed with two children. They were all residing in Kadiwal Village in Kushtagi Taluk. After some time of the marriage, it is alleged that the accused was addicted to alcohol and he used to suspect the fidelity and loyalty of his wife and always used to quarrel with her. Inspite of repeated advise and conciliation by the deceased, the accused did not desist himself from continuing his attitude. In this background, the accused developed some hatred :4: against the deceased on the ground that the said person has kept the wife of the accused in his house and he refused to send her to the matrimonial home of the accused. Due to this particular grievance against the deceased, the accused was often declaring that he would kill the deceased on any day.
6. In the above said backdrop, it is the case of the prosecution that on 22.04.2011, the family members of the deceased, the wife of the accused, children of the accused, children of the deceased, after taking their dinner they slept in the house of the deceased. Some people had slept inside the house and some people slept outside the house. The accused also came and slept on a katta which was situated just opposite to the house of the deceased. It is alleged that at about 01:00 a.m., when the deceased Sharanappa had slept in front of his house, the accused taking :5: advantage of the said situation, threw a sized stone on the head of the deceased and caused severe injuries. The said stone also hit the son of the deceased by name Shivappa P.W.9 and caused injuries to him. The deceased Sharanappa died due to the injuries. The accused has also ran away from the spot, when all the witnesses woke up and saw the accused committing such act against the deceased.
7. On the above said allegations, P.W.1 Gangavva, wife of the deceased lodged a complaint against the accused and the same was registered by the respondent Police in Crime No.58/2011 for the offences punishable under Sections 302 and 324 of IPC and investigated the matter and submitted the charge sheet for the above said offences against the accused. The accused was also arrested and he was secured by the committal Court and the case was committed :6: to the Court of Sessions. The Trial Court after securing the presence of the accused, proceeded to frame charges against the accused for the offences noted supra.
8. The prosecution in order to bring home the guilt of the accused, examined 25 witnesses as P.Ws.1 to 25 and got marked Exs.P-1 to P-18 and material objects as M.Os.1 to 6. Ex.D-1 and D-2 were the part portions of the statements of inquest marked during the course of cross- examination. The statement of the accused was recorded under Section 313 of Cr.P.C. He was also called upon to lead any evidence on his side, as the accused did not choose to do so. After hearing both the sides, the Trial Court after appreciation of the oral and documentary evidence on record, arrived at a conclusion that the prosecution has proved its case beyond reasonable doubt. :7:
9. Learned counsel for the appellant strenuously contends before this Court that there are no eyewitnesses to the incident. All the witnesses, who claim to be eyewitnesses are circumstantial witnesses. They only say that they saw the accused near the scene of the offence and they never saw the accused assaulting the deceased.
10. Learned counsel also contends that the evidence of the prosecution discloses that that the accused was a drunkard and he used to come to the house in a drunken state every day and on that day also he was fully drunk, he might have lost the control and he might have committed such an act unknowingly, that such act may cause the death of the deceased. Therefore, there was no intention or knowledge to commit such an offence. Therefore, actually when he had lost the balance of mind, the offence would fall under exception to :8: Section 300 of IPC. Therefore, even if the Appellate Court comes to the conclusion that offence has been made out by the prosecution, the conviction should be modified for the offence punishable under Sections 304 (1) and 304 (2) of IPC and the sentence passed by the Trial Court requires to be modified.
11. Per contra, the learned Additional S.P.P. submitted before the Court that in order to prove the case, there are witnesses who have actually seen throwing the stone on the head of the deceased and some persons made attempt to catch him, but he ran away from the spot. The witnesses are no other than the wife of the deceased, children of the deceased and as well as wife and children of the accused. Therefore, their testimonies cannot be easily brushed aside, because they cannot be in any breathe of imagination called as interested witnesses, :9: because they are not only close relatives to the deceased, but also to the accused.
12. Learned Additional S.P.P. submitted that there is no evidence to show that accused was so drunk on that day and he lost all his mental balance and in such uncontrolled mind, he has committed such an offence. In the absence of hallucination of such facts, the Court cannot draw any such inference bereft of any facts. Therefore, the Trial Court has rightly convicted the accused for the above said offences and sentence is also adequate and commensurate to the offence committed by the accused. Hence, he pleaded for dismissal of the appeal.
13. The prosecution has examined 25 witnesses. P.W.1 is the wife of the deceased, who lodged the complaint, as per Ex.P-1. She was also present when the material objects like stone, : 10 : pillow, jamkhana, chappals of the accused were recovered on the spot by the Police.
14. P.W.2 is the Panch to the spot mahazar, under which material objects M.Os.1 to 4 were seized by the Police.
15. P.W.3 is a witness to the inquest panchanama Ex.P-3. There is no dispute with regard to the death of the deceased. Therefore, there is no need to in detail go into the evidence of this witness.
16. Likewise, P.W.5 is also the inquest witness. Though he has turned hostile, his evidence is also not so significant.
17. P.Ws.6, 8 and 9 are the eyewitnesses to the incident. P.W.7 is a child witness. The Court after examining the child witness, treated that the child is unable to give any proper evidence before the Court.
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18. P.W.10 Venkatesh Jadhav, P.W.11 Mahesh, P.W.12 Ningappa, P.W.13 Rajashekar were all neighbours, who came to know about the incident later.
19. P.W.14 Gouramma, younger sister of the deceased and wife of the accused. She came to know about the incident later.
20. P.W.15 is the maternal uncle of the deceased. He speaks about the motive. Likewise, P.Ws.16 and 17 also spoke about the motive factor.
21. P.W.18 Kariyavva Adinavar, sister of the accused has not supported the case, but turned hostile.
22. P.W.19 Marigouda Mudibasanagoudar is the Junior Engineer, who has drawn the sketch of the offence as per Ex.P-6. There is no dispute with : 12 : regard to the place of the incident. The evidence of this witness is also not so significant.
23. P.W.20 Kashinath, working as Constable, who carried the First Information Report to the Jurisdictional Magistrate.
24. P.W.21 is the Police Constable who guarded the dead body and handed over the dead body to the postmortem examination.
25. P.W.22 is the Police Constable taken the clothes of the deceased M.Os.3 to 6 to FSL.
26. P.W.23 is the Circle Inspector of Police, who has completed the investigation and filed the charge sheet.
27. P.W.24, who was working as Section Officer given information that at the time of the incident there was electricity supply near the scene of the offence.
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28. P.W.25 is the PSI, who actually received the complaint, registered the case and dispatched the FIR to the Court.
29. On careful perusal of the evidence on record, P.W.1 Gangavva, wife of the deceased and as well as the other members of the family who were sleeping in the house on the particular day i.e., P.W.6 Mallavva, daughter of the deceased, P.W.8 Kalavva, daughter of the accused, P.W.9 Shivappa, son of the deceased have fully supported the case of the prosecution. In their evidence, they have categorically stated that on the particular day, they were all sleeping inside and outside the house of the deceased. The deceased also slept just in front of the house and after some time, the accused also came near the house and accused was also sleeping on a katta situated in front of the house of the deceased. They all deposed that about 01:00 a.m. they heard : 14 : stone smashing sound. Immediately they all woke up and saw that the accused had smashed the head of the deceased with a stone and after screaming, all the people had woke up. He ran away from the spot.
30. Invariably all witnesses have stated in the above said manner, they have also identified the chappals of the accused, which were found near the scene of the offence and also identified the blood stained clothes of the deceased and the stone seized by the Police on that particular day.
31. In the course of cross-examination of these witnesses, nothing worthwhile has been elicited except suggesting that the accused was drunk on that particular day and some miscreants have killed the deceased and the accused has been falsely impleaded. Therefore, the defence of the accused from the evidence of these witnesses is apparent that he wanted to take shelter under the : 15 : guise that he was fully drunk on that day and had lost his control and therefore, without for-seeing what he was doing and under such situation he has committed such an act. Therefore, he pleaded that it may fall under the provisions of Sections 304 (1) or 304 (2) of IPC.
32. Looking to the above said facts and circumstances, the accused himself has stated that the deceased died due to the assault by some other miscreants. There cannot be any dispute with regard to the homicidal death of the deceased, perhaps that may be the reason the prosecution did not venture upon to examine the Doctor. However, the postmortem examination report was got marked to the Investigating Officer as per Ex.P12. Ex.P12 discloses that the death of the deceased was occurred due to the injury to vital organ to the brain following injury to the head and the time of death was also mentioned : 16 : between 12 to 24 hours just prior to conducting of the postmortem examination. Therefore, the sequence of events as narrated by the eyewitnesses and also supported by the postmortem examination report clears out the doubt that, the prosecution has proved homicidal death of the deceased. All the witnesses have categorically stated about the presence of the accused at the spot and particularly the above said witnesses have actually seen the accused smashing the head of the deceased and afterwards running away from the spot. Though some of the witnesses have stated that they came to the spot little later and came to know about the death of the deceased from the wife of the deceased, but they are all circumstantial witnesses and they have not actually seen the alleged offence committed by the accused, but they have promptly stated that the fact which they knew. : 17 :
33. The re-appreciation of the evidence discloses that, the eyewitnesses are no other than the relatives of the deceased and also the accused. Some of the witnesses as noted above PWs1, 6, 7, 8, 9 and PWs10 to 17 have all spoken about the conduct of the accused and particularly the related witnesses have stated about the ill- treatment and harassment by the accused on the deceased that he was often assaulting her and harassing her suspecting her fidelity and loyalty and he was also addicted to alcohol. Therefore, the above said motive, which is categorically stated by the witnesses, has also not been disturbed during the course of cross-examination of all theses witnesses. Therefore, though the defence has been taken that a false case is foisted, there is no reason got explained in the evidence of these witnesses that why the witnesses have to falsely implicate the accused when they are not related to the deceased, but no : 18 : other than the daughter and son of the deceased and the wife of the accused have supported the case of the prosecution. Unless there is any strong evidence is available to discard the evidence of these witnesses, in our opinion, the prosecution can be said to have proved the case beyond reasonable doubt.
34. Last but not least the Court has to examine whether the mere addiction of alcohol and drunkenness itself are sufficient to draw any inference that the accused has lost his mental balance at that particular point of time. Exception to Section 300 does not cover the said contingency; it only shows that if there was any provocation which was actually given by the deceased, in such an eventuality only the act may come within the purview of Section 300. Section 85 I.P.C. also discloses that if an act of a person incapable of judgment by reason of intoxication : 19 : caused against his will, in such an eventuality also he is entitled for the benefit under that section. But in order to establish the said act of the accused fall under such exception, it should be established by atleast preponderance of probabilities that, at the time of doing such an act by a reason of intoxication, he was so incapable of knowing the nature of his act or that he was doing any wrong or contrary to law. Further that, the drink which intoxicated him was administered to him without his knowledge or against his will. Absolutely no such evidence is adduced during the course of cross-examination. Therefore, neither the provision under Section 304 Part-I or II or Section 85 of the Indian Penal Code can be pressed into service.
35. Under the above said facts and circumstances, we don't find any strong reason to take a different view to that of the opinion : 20 : expressed by the Trial Court. Therefore, the judgment of conviction and sentence passed by the Trial Court is appropriate and sentence is also commensurate with the offence committed by the accused. The appeal is devoid of merits and the same is liable to be dismissed. Accordingly, dismissed.
36. In view of dismissal of the appeal, pending I.A.No.2/2015 seeking suspension of sentence does not survive for consideration and accordingly dismissed.
Sd/-
JUDGE Sd/-
JUDGE Para 1 to 31 - Rsh Para 32 to end - clk