Karnataka High Court
Ashok S/O Annegowda vs The State Of Karnataka on 1 March, 2013
Bench: K.L.Manjunath, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF MARCH, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
CRL.A.NO.535/2009(C)
BETWEEN
1 ASHOK
S/O ANNEGOWDA
AGED ABOUT 25 YEARS
OCC: AGRICULTURE R/O KESTHURU
KOPPALU VILLAGE, K R NAGAR TALUK
MYSORE DISTRICT
... APPELLANT
(By Sri : K A CHANDRASHEKARA, ADV. )
AND :
1 THE STATE OF KARNATAKA
BY THE POLICE OF
K R NAGAR POLICE STATION
MYSORE DISTRICT
... RESPONDENT
(By Sri : N.S.SAMPANGIRAMAIAH, HCGP )
THIS CRL.A. FILED U/S.374(2) CR.P.C FILED BY
THE ADV.FOR THE APPELLANT/ACCUSED NO.2
PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE ORDER OF CONVICTION
AND SENTENCE DATED:30.5.2009 AND 2.6.2009
PASSED BY THE PRESIDING OFFICER FTC-V ,
MYSORE IN S.C.NO.47/2008, CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCES
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P/U/S.302 R/W 34 OF IPC AND SENTENCED HIM TO
UNDERGO R.I. FOR LIFE AND PAY FINE OF
RS.50,000/-I.D. TO UNDERGO IMPRISONMENT FOR A
PERIOD OF 1 YEAR AND THE APPELLANT/ACCUSED
PRAYS THAT HE SHALL BE ACQUITTED.
THIS APPEAL COMING ON FOR HEARING THIS
DAY, MANJUNATH J, DELIVERED THE FOLLOWING:
JUDGMENT
The appellant who was A2 in S.C.NO.47/2008 on the file of Fast Track Court-V, Mysore, is questioning the legality and correctness of the Judgment and order of conviction dt.30.5.2009 and order of sentence dt.2.6.2009, wherein the appellant and A1 deceased Srinivas have been convicted for the offence punishable u/s 302 r/w 34 IPC and sentenced to undergo Imprisonment for Life and to pay a fine of Rs.50,000/- each, in default to undergo imprisonment for a period of one year.
2. A1 Srinivas did not file an appeal. Today a Memo is filed by the appellant by producing the Death certificate of Srinivas stating that Srinivas died in the Central Jail, Mysore on 25.7.2011.
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3. It is the case of the prosecution that there was a dispute between the deceased Chikkaiah @ Chikkegowda and Accused-1 Srinivas in regard to the use of pathway running in between their land at Srirampura village in K.R.Nagar Taluk and in the said connection there used to be frequent quarrels between them. On 5.10.2007 there was a festival in the village. At about 8.00 p.m. in the night Chikkaiah after having food in the house of PW8 Malleshaswamy, his father-in- law was proceeding towards his house and when he was near the house of PW21 Annegowda, A1 Srinivas came there and they started quarreling each other in regard to the use of pathway in the land. A2 who was present there pushed deceased Chikkaiah, as a result of which he fell down and A1 took a stone and dropped on the head of the deceased, as a result of which he sustained grievous injuries. This incidence was witnesses by PW8 Malleshaswamy, PW21 Annegowda, PW9 Harish and others. Immediately he was shifted to K.R.Nagar General Hospital, where he was treated by Dr. Madav PW13 and issued a wound certificate as per 4 Ex.P7. Considering the nature of injury sustained by the deceased, he was directed to go to a major hospital. Accordingly, he was shifted to K.R.Hospital, Mysore and then to B.G.S.Appollo Hospital. He was there as an in- patient and later he was shifted to NIMHANS Hospital, Bangalore and he breathed his last on 20.12.2007, 76 days after the incident. On 6.10.2007 at about 3.00 p.m. the father-in-law of the deceased PW8 Malleshaswamy lodged a complaint as per Ex.P4 before the K.R.Nagar Police through PW27 Prasannakumar who registered a case for the offence punishable u/s 307 in Crime No.240/2007. Accordingly, FIR submitted as per Ex.P23. On the same day, PW27 visited the scene of occurrence and conducted the spot Mahazar as per Ex.P2 in the presence of PW8 and PW2 Suresh and seized MO2. On 7.10.2007 PW27 Prasannakumar again visited the village and recorded the statement of PW21 Annegowda, PW9 Harish and again he visited the village on 8.10.2007 apprehended A1 and was brought to K.R.Nagar Police Station. He was produced before the JMFC, K.R.Nagar and recovered blood stained shirt of 5 deceased - MO1 and the same was sent for FSL. Spot Mahazar was drawn as per Ex.P1 in the presence of PW1 and CW6 Ramakrishnegowda. After the death of the deceased PW8 again lodged a complaint as per Ex.P23 on 20.12.2007 and based on the same, the case was converted from 307 IPC to 302 IPC r/w 34 IPC and additional Report was sent accordingly. The dead body was sent for Autopsy. PW13 Madav, Medical Officer attached to K.R. Nagara General Hospital conducted the Autopsy as per Ex.P15. After completion of investigation, charge sheet was filed against both the accused. The accused pleaded not guilty and they claimed to be tried.
4. In order to bring home the guilt of the accused, the prosecution relied upon the evidence of PWs.1 to 27, Exs.P1 to 36 and MOs.1 and 2 and Exs.D1 and D2 were marked while cross-examining PWs.9 and 21. The accused denied the incriminating evidence found against them in the evidence of the prosecution and their defence was total denial. The learned Sessions Judge after hearing the learned Prosecutor and the 6 defence counsel formulated the following points for his consideration:
1) Whether the prosecution proves beyond all reasonable doubt that on 20.12.2007 the deceased Chikkaiah @ Chikkegowda met with a homicidal death in a village Kesthurukopppalu, within the limits of K.R.Nagar Police Station on account of head injuries that he had sustained on 05.10.2007?
2) Whether the prosecution further proves that on
05.10.2007 at about 8.00 p.m. in front of the house of PW21 Annegowda in a village Kethurukoppalu, within the limits of K.R.Nagar Police Station, the accused A1 and A2 picked up a quarrel with the decased Chikkaiah @ Chikkegowda with a common intention of murdering him and among the accused A1 and A2, the accused A2 pushed the deceased Chikkaiah on the road in-front of the house of P.W.21 Annegowda and when the deceased Chikkaiah fell down on the ground, the accused A1 dropped stone M.O.No.2 on his head and caused certain bleeding injuries on his head and on 20.12.2007 the deceased Chikkaiah succumbed to the injuries and thus the accused A1 and A2 have intentionally caused his death and thereby the accused A1 and A2 have committed an offence punishable under Section 302 r/w 34 of I.P.C?
5. After considering the entire evidence and the arguments advanced by them, points-1 and 2 were held in affirmative and ultimately he came to be conclusion that the prosecution has proved the guilt of both the accused beyond reasonable doubt. Accordingly, they were convicted and sentenced for the aforesaid offence. 7 This Judgment of conviction and order of sentence is called in question in this appeal by the appellant/accused No.2.
6. The appellant is in the custody from the date of the arrest. He was arrested by the Police on 6.1.2008. The main contention of the appellant before us is that the Sessions Judge has committed a grave error in convicting the appellant herein. According to him, the appreciation of evidence by the Sessions Court is perverse and liable to be set aside because even according to the case of PW8 complaint and the prosecution the dispute was in regard to the share of pathway situated in between the land of the deceased and A1 and there was no dispute or enmity between the appellant and the deceased. According to him, when complaint was lodged at the first instance by PW8 immediately after the incidence on 6.10.2007 as per Ex.P4 is only against A1 and the name of the appellant herein has not been mentioned in Ex.P4. According to him, immediately after the incidence, the deceased was shifted to General Hospital, K.R.Nagar and Dr.Madav 8 PW13 has treated him. While furnishing the history of the incidence, the brother of the deceased, Srinivas PW22 has only mentioned the name of A1 and not that of the appellant. He further contends that Prasannakumar, ASI who conducted the investigation based on Ex.P4 complaint recorded the statement of all the witnesses till 20.12.2007 discloses that the investigation was directed only against A1 and not against appellant herein. He further contends after the death of the deceased when a further complaint was lodged by PW8 as per Ex.P24 on 20.12.2007 the name of the appellant was planted as if complainant Malleshaswamy in his anxiety while lodging the complaint Ex.P4 did not mention the presence of A2 (appellant herein). According to him, it is an after thought and the same has been lodged only to plant the appellant even though the appellant is no way connected with the alleged incident. In the circumstances, he contends that the appreciation of evidence by the Sessions Court is perverse and liable to be set aside.
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7. He further contends that even according to PW8 the complainant, stone dropped on the head of the deceased by A1 is an ordinary stone but what has been recovered and produced by the prosecution as per MO2 is a size stone which will be used for constructional activities. Therefore, the very recovery of the MO2 has to be doubted.
8. Per contra, the learned Govt. Pleader, Mr. Sampangiramaiah supporting the Judgment of the Sessions Court contends that merely because in an anxiety if PW8 has forgotten to mention the name of the appellant as an assailant in Ex.P4, cannot be a ground to acquit the appellant and he submits that the appreciation of evidence by the Sessions Court is just and proper and reasonable and does not calls for interference. In the circumstances, he requests the court to dismiss the appeal.
9. Having heard the counsel for the parties, what is to be considered by us in this appeal is: 10
1) Whether the appreciation of evidence by the Sessions Court is just and proper and reasonable and does it calls for any interference?
10. As pointed out earlier, the case of the prosecution is that there was a dispute between the deceased Chikkaiah and A1 Srinivas in regard to use of pathway situated in between their wet lands at Srirampura village of K.R.Nagar Taluk. It is also their case because of the said issue there used to be frequent quarrel between them. It is also the case of the prosecution that on 5.10.2007 at about 8.00 p.m. in the night deceased after having food in the house of his father-in-law PW8 was going home and when he was in front of the house of PW21 Annegowda, A1 picked up quarrel and PW8 having heard the quarrel went near the spot, he saw A1 pushing the deceased and as a result of which deceased fell on the road, immediately A1 took a stone lying there and dropped on the head of the deceased and based on Ex.P4, criminal law was set into motion in Crime No.240/07 for offence punishable u/s 307 IPC. The same was registered by PW27 11 Prasannakumar. On the same day deceased was treated by PW13 Dr.Madav who has issued wound certificate. While issuing wound certificate he has clearly mentioned the name of the assailant as informed by PW22 Srinivas, younger brother of the deceased, wherein it is mentioned that the deceased sustained injury on account of A1 Srinivas throwing stone on him.
11. From looking into complaint Ex.P4 and wound certificate, it is clear that name of the appellant herein has not been figured either by PW8 or PW22 both of them are eye witnesses. Even if we consider that PW8 being the father-in-law of the deceased in his anxiety could not figure the name of the appellant in the complaint lodged as per Ex.P4, there was no difficulty for the complainant to inform the name of appellant herein on subsequent dates at least when Mahazar, spot panchanama were drawn as per Ex.P2 on the next day in the presence of PW2 Suresh and when PW27 has recorded the statement of several witnesses on 7.10.2007 and 8.10.2007. The statements of eye witnesses namely, Harish, PW21 Annegowda, PW22 12 Srinivas, the statement of these witnesses have been recorded subsequently only after the death of deceased for the first time 76 days after the incident, PW8 has lodged a complaint as if he had forgotten to mention the name of the appellant. But such a version cannot be believed by any court. The learned Sessions Judge considering Ex.P4 and the wound certificate and the statement recorded by the Police, till the death of Chikkaiah without assigning any cogent reasons, the appellant has been wrongly convicted because even according to the case of the prosecution there was no enmity or dispute between the deceased and the appellant herein. Even if it is taken for granted that appellant was present at the time of quarrel between the deceased and A1, overt-act of the appellant is that he had pushed the deceased and as a result of which he fell down. But appellant could not have anticipated that A1 would take a stone lying on the spot and drop it on the head. Having regard to the same, it cannot be said that A2 at that time had shared common intention with A1 to commit the murder of the deceased. Therefore, we 13 are of the view that appreciation of evidence by the Sessions Court is perverse and liable to be set aside.
12. In the result, the Appeal is allowed. The Judgment of conviction and order of sentence passed by the Fast Track Court-V, Mysore, dt.30.5.2009 and 2.6.2009 in S.C.No.47/2008 so far as it relates to the appellant is concerned is hereby set aside. The appellant is acquitted for the aforesaid offence. The appellant is in custody and he is ordered to be set at liberty forthwith, if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE Ak