Karnataka High Court
Timmanna S/O Alappa Waddar vs The State Of Karnataka on 30 July, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JULY, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL No.3583/2012
Between:
Timmanna S/o Alappa Waddar
Age:45 Years, Occ: Coolie
R/o Lingadalli, Tq. Basavakalyan
Dist.Bidar
... Appellant
(By Sri Mahantesh H.Desai, Advocate)
And:
The State of Karnataka
Through Mudbi P.S.
Tq. Basavakalyan Represented by
Spl. Public Prosecutor High Court of
Karnataka Circuit Bench
Gulbarga
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
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This Criminal Appeal is filed under Section 374 (2)
of Cr.P.C., praying to allow the appeal by acquitting the
appellant for the offence punishable under Section 448,
324, 307, 302 of IPC and set aside the judgment of
conviction and order of judgment passed by the learned
Presiding Officer of Fast Track Court at Basavakalyan,
Dist. Bidar in S.C.No.164/2010 dated 30.09.2011
which is at Annexure-A.
This appeal coming on for Final Hearing this day,
B.A.PATIL J., delivered the following:-
JUDGMENT
This appeal has been preferred by the appellant - accused No.1 assailing the judgment of conviction and order of sentence passed by Fast Track Court, Basavakalyan in S.C. No.164/2010 dated 30.09.2011 whereunder accused No.2 and 3 were acquitted for the offences punishable under Sections 448, 504, 324 r/w Section 34 of IPC and appellant - accused No.1 has been convicted for the offence under Sections 324, 307, 302 and 448 of Indian Penal Code ('IPC' for short)
2. We have heard the learned counsel Sri Mahantesh H. Desai appearing for the appellant and -3- Sri Prakash Yeli, learned Addl. State Public Prosecutor for respondent - State.
3. Facts leading to the case of the prosecution are that;
Complainant-Sangeeta got married with P.W.9- Nagesh about 15 years back and they are having three sons and a daughter. Appellant-Timmanna used to reside near the house of the complainant. Husband of the complainant used to visit his house on every fortnightly as he had been to work at Bagadal village. Earlier to the incident, complainant-Sangeeta had been to her parental house and she returned to the house on 04.11.2009. At that time, her son C.W-15 Prakash informed her that appellant had made an enquiry about her and he has also abused her in filthy language and also assaulted on him. In that light, complainant stopped to work under appellant and the son of the complainant-Prakash was grazing sheep of appellant, -4- he also stopped to work under the appellant. Due to the said act of the complainant and her son, accused Nos.1 and 2 enraged and on 05.11.2009 at about 7.00 p.m. came to the house of the complainant and at that time, appellant attempted to assault on the complainant with a club, but her son P.W.10-Umesh caught hold the hands of appellant and at that time appellant assaulted P.W.10 with club, due to which he sustained bleeding injuries on his head. By hearing the galata, complainant and her both the sons came out of her house and they informed the said act of accused persons to the parents of the complainant and her brother. The mother of the complainant namely, Hanamavva, brother namely, Amruth and her uncle namely, Manik came to the house of the complainant at about 8.30 p.m. on the same day. When they were enquiring the complainant, accused Nos.1 to 3 came and abused them in filthy language. Accused No.3- Yellamma caught hold the hands of complainant's -5- mother-Hanumawwa. Appellant herein stabbed her with knife on her chest, stomach as a result of the same, she became unconscious. Accuse No.2 caught hold the hands of P.W.8-Amruth and at that time appellant stabbed on his left thigh. When by seeing the said act, P.W.11-Manika caught hold the hands of the appellant, in the meanwhile P.W.4-Shantabai, P.W.5-Babu, P.W-6 Prabhu came and pacified the said quarrel. Immediately, the injured Hanumawwa and Amruth were brought to the Government Hospital at Humnabad and P.W.10-Umesh had been taken to Govt. Hospital, Basavakalyan. Hanumawwa died due to the injuries suffered. It is further alleged that appellant had expressed his intention to have an illicit relation with the complainant-Sangeeta and in that light the said galata has taken place. On the basis of the complaint, a case has been registered in crime No.114/2009, thereafter after investigation the charge sheet was filed as against the accused persons.
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4. The learned Magistrate after receipt of charge sheet, committed the case to the Sessions Court, Sessions Court took the cognizance, secured the presence of the accused persons, complied Section 208 of Cr.P.C., and after hearing both the sides, charge came to be framed, read over and explained to the accused persons, who pleaded not guilty and claim to be tried and as such the trial was fixed.
5. To prove the case of the prosecution, prosecution got examined 20 witnesses as P.Ws.1 to 20 and got marked 24 documents as Exs.P.1 to 24 and 05 material objects as M.Os.1 to 5. After closure of prosecution side, statement of the accused was recorded by putting incriminating material as against them. Accused denied the same. Thereafter, accused have got examined one witness as D.W.1 and got marked Exs.D.1 and 2. Thereafter, after hearing both the sides, the impugned judgment of conviction and order of -7- sentence as against the appellant - accused No.1 came to be passed and accused Nos.2 and 3 were acquitted.
6. The main grounds urged by the learned counsel for the appellant are that the judgment of conviction and order of sentence passed by the trial Court as against him is contrary to law and evidence material placed on record. It is his further submission that the independent eyewitnesses have not supported the case of the prosecution and they have been treated as hostile. The trial Court only on the interested testimony of P.Ws.1, 8, 9, 10, 11 has convicted the appellant. It is his further submission that the material contradictions, omissions and improvements have not been properly appreciated by the trial Court. It is his further submission that the appellant has also suffered with injuries and he has been got admitted in Umerga Hospital, the police did not record his statement and no case has been registered against the complainant and -8- others for having assaulted the accused persons. It is his further submission that dying declaration has been recorded belatedly and no separate certificate of the doctor about the fitness of the declarant has been recorded. Under such circumstances, the trial Court ought to have given the benefit of doubt. It is his alternative submission that when the accused has also suffered with injuries that itself goes to show that the complainant party are aggressor and the accused person was not having any intention to cause the death of the deceased. At the most, the alleged offence may fall either under Section 304 Part-I or Part-II of IPC. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence.
7. Per contra, learned Addl. State Public Prosecutor vehemently argued and submitted that there are eyewitnesses including the injured eyewitnesses to the alleged incident and they have categorically deposed -9- about the overtacts of the each of the accused persons including the overtacts of the appellant herein. It is his further submission that appellant had a motive and he wanted to have illicit relationship with the complainant and in that light, earlier he came and abused and tried to assault the complainant and when at the second time his mother, brother and uncle questioned the same, it is accused No.2 caught hold of the deceased Hanamavva and appellant stabbed on her chest, stomach and the said evidence is corroborated with the evidence of Doctor-P.W.18 and the postmortem report as per Ex.P- 20, the death of the deceased is homicidal due to the injuries caused to the deceased by the appellant. The trial Court after appreciating the entire evidence has rightly convicted the appellant. There are no good grounds made out so as to acquit the appellant. It is his further submission that the provisions of Section 304 Part-I or Part-II of IPC are not attracted. On these grounds, he prayed to dismiss the appeal.
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8. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the trial Court records.
9. To prove the case, prosecution got examined P.W.1, the complainant. In her evidence she has reiterated the content of the complaint. She further deposed that about one year back at about 7.00 p.m., appellant-Timmanna, Accused No.2-Ramesh by consuming alcohol came in the courtyard and abused her with filthy language and told that he will not leave her as he is liking her and since she is not co-operating with him tried to assault on her. At that time, her son-Ramesh came and tried to pacify the galata and in the meanwhile appellant assaulted with the club on his head and caused the bleeding injuries. The alleged incident has been taken place inside the house. She has further deposed that she informed the said act of
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appellant herein and accused No.2 to her brother, but he did not respond properly and as such she informed the said fact to her uncle Amruth and her brother Manik and mother Hanamavva and immediately on the same day they came to the house at about 9.00 p.m. She has further deposed that they went and asked to the brother of the accused and at that time accused No.3-Yellamma caught hold the hands of her mother and appellant stabbed on her right chest and stomach and as a result of the same blood started oozing and she collapsed. P.W.8-Amruth came to pacify the galata and accused No.2 caught hold the hands and appellant assaulted with knife on his left thigh and as a result of the same he sustained bleeding injuries. She has further deposed that by hearing the galata, outsiders came and pacified the quarrel. She has further deposed that they called the Ambulance and took his mother and uncle to Government Hospital, Humnabad and her son Umesh was taken to Govt. Hospital, Basavakaylan
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and after he being treated by doctor they returned back to the Government Hospital, Humnabad. She has further deposed that at Govt. Hospital, Humnabad, Police have recorded her statement and she identified the complaint as per Ex.P-1. She further deposed that her mother and uncle were shifted to Govt. Hospital, Bidar and thereafter to Secunderabad Hospital, wherein the mother of the complainant died in the said hospital. During the course of cross-examination nothing has been elicited so as to discard about the alleged incident. Other suggestions have been denied.
10. P.W.2, she is none other than the sister of the deceased she has acted as inquest mahazar pancha to Ex.P-3. P.W.3 is the spot mahazar pancha to Ex.P-4 to the first incident whereunder a club has been seized and subsequent spot mahazar-Ex.P-5 whereunder the knife, stained and unstained mud has been seized by drawing a mahazar M.O.1(a) is the knife, M.O.2 is the
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white cloth bag and blood stained mud, M.O.3 is the sample mud. P.Ws.4 to 6 are the independent eyewitnesses to the alleged incident and they have not supported the case of the prosecution and they have been treated as hostile. During their cross- examination, nothing has been elicited from their mouth so as to substantiate the case of the prosecution.
11. P.W.7 is the co-pancha to the inquest mahazr Ex.P-3. P.W.8 is the cousin brother of complainant and he is an injured eyewitness. He has also reiterated the evidence of P.W.1. He has further deposed that appellant also assaulted on his left thigh. He has further deposed that he was admitted in Secunderabad Hospital for 08 days. P.W.9 is an eyewitness to the alleged incident and he is the husband of P.W.1. P.W.10 is also an injured eyewitness. He has also reiterated the evidence of P.Ws.1 and 7. P.W.11 is the brother of P.W.1 and he is also an
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eyewitness to the alleged incident and he has also reiterated the evidence of P.W.10. P.W.12 is also the brother of P.W.1 and he is a hearsay witness. P.W.13 is the doctor who examined P.W.10-Umesh and has deposed that P.W.10 he has suffered with head injury on his left side of the head and he has issued the wound certificate as per EX.P-16, nothing has been elicited in the cross-examination of this witness. P.W.14 is the Assistant Engineer who has drawn the sketch as per Ex.P-17. P.W.15 is the doctor who examined P.W.8-Amruth and has issued the wound certificate as per Ex.P-18. Nothing has been elicited during the course of cross-examination of this witness. P.W.16 is the investigation officer who partly conducted the investigation. P.W.17 is the ASI, who has recorded the oral complaint given by P.W.1 and registered the case and issued the FIR. P.W.18 is the doctor who has conducted autopsy over the dead body of the deceased. In his evidence he has deposed with regard to the
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injuries suffered by the deceased and has opined that the cause of death is due to septic complications of injuries (stab injuries) and has issued the postmortem report as per Ex.P-20. P.W.19 is the investigating officer who investigated the case and has filed the charge sheet against the accused persons. P.W.20 is the Magistrate who recorded the dying declaration of the deceased-Hanamawwa after obtaining the necessary certificate from the concerned doctor as per Ex.P22.
12. In the case on hand, there are injured eyewitnesses and eyewitnesses to the alleged incident and there is consistency in their evidence with regard to the alleged incidents are concerned. P.W.1 complainant has deposed about the first incident whereunder that the appellant assaulted her son-Umesh with stick and caused bleeding injury to his head and subsequently he has also assaulted with knife on the right chest and stomach of the deceased-Hanumawwa and also caused
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stab injuries to his uncle on the left thigh. This evidence has been corroborated with the evidence of P.W.8 and
10. Evidence of the injured witness attaches great weightges. The presence of the said witnesses at the place of incident is substantiated by the injuries suffered by them in the same occurrence and it presumes that he speaks truth unless it is shown otherwise. This preposition of law has been laid down by the Hon'ble Apex Court in the case of Balasubramanian Vs. State of Tamil Nadu reported in 2017 (13) SCC 585. Keeping in view the ratio laid in the above decision and analyzing the factual matrix that there is evidence to show that it is the appellant who assaulted the son of the complainant as well as the deceased with stick and knife and as a result of the same the deceased succumbed to the injuries.
13. Exs.P-18 and 16, the Wound Certificates issued also substantiates the fact that the injured
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sustained injuries in the same incident. Even the evidence of P.W.18, the doctor who has conducted the autopsy over the dead body of the deceased shows that she has suffered four injuries and the death of the deceased is due to septic complications of injuries. He has not specifically stated that it is because of the stab injuries deceased died. At this juncture, the learned counsel for the appellant contended that the appellant was not having any intention to cause the death of the deceased and there is no premeditation or intention in the alleged incident. In that light, it is his submission that the appellant be convicted if he is found guilty for the offence under Section 304 Part-I or Part-II of IPC instead of under Section 302 of IPC.
14. The co-ordinate Bench of this Court in the case of Shankara @ Malla & Ors. Vs. The State of Karnataka in Crl.A.No.1324/2015 and connected matter rendered on 09.01.2019, held as under;
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"18. In order to consider the case under Section 304-I and II of IPC, the case has to be made out under exceptions No.1 or 4 of Section 300 of IPC. For the purpose of brevity we quote Section 300 of IPC and exceptions (1) and (4) which reads as under;
300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. - When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or
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causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:-
First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx Exception 4.--Culpable ho mic ide is not murder if it is co mmitted without pre meditation in a sudden f ight in the heat of pass ion upon a sudden quarrel and withou t the off ender's hav ing taken undue advan tage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."
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19. On going through exception 1 of Section 300 of IPC, culpable homicide is not murder if the offender while doing the act deprived of the power of self-control, by grave and sudden provocation. In order to bring the case under the said exception accused has to show that he deprived of the power of self control, by grave and sudden provocation which is caused by the person whose death has been caused.
Second aspect is in order to attract exception No.4, four requisites must be satisfied by the accused (i) it was sudden fight (ii) there was no premeditation (iii) the act was committed in heat of passion and (iv) assailant has not taken undue advantage or acted in cruel manner."
On careful perusal of the above said preposition of law culpable homicide is not amounting to murder if the offender while doing the act deprived of the power of self control by grave and sudden provocation. On perusal of the evidence, it indicates that the doctor P.W.18, who conducted autopsy over the dead body of the deceased has opined that the cause of death is due to septic complications of the injuries and it is not the injury itself so which has caused the death of the deceased and even the other evidence so which has been taken
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into consideration the main grievance was against P.W.1.
15. Taking into consideration the above said factual matrix and the manner in which the alleged incident has taken place in a heat of passion, we are of the considered opinion that appellant is no doubt liable to be convicted but the trial Court instead of convicting the appellant for the offence under Section 302 of IPC ought to have convicted the appellant - accused No.1 under Section 304 Part-I of IPC. Insofar as other offences are concerned, the trial Court has rightly convicted the appellant for the offence under Section 324, 307 and 448 of IPC.
16. For the foregoing reasons, the appeal filed by the appellant - accused No.1 is hereby allowed in part. The judgment of conviction and order of sentence passed by the Fast Track Court, Basavakalyan, Dist.
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Bidar in S.C.No.164/2010 dated 30.09.2011 is modified to the extent that;
i) The appellant - accused No.1 is
convicted for the offence under
Section 304 Part-I of IPC instead of
convicting him for the offence
punishable u/S 302 of IPC and he is
sentenced to undergo Rigorous
Imprisonment for a period of Ten (10) Years and to pay fine of Rs.5,000/-.
In default of payment of fine, he shall undergo further period of imprisonment for a period of six months.
ii) The conviction and sentence as against appellant - accused No.1 passed by the trial Court for the offences under Sections 324, 307 and 448 of IPC are confirmed.
All the sentences referred to above shall run concurrently.
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The registry is hereby directed to send back the records to the trial Court forthwith.
Sd/-
JUDGE Sd/-
JUDGE BL