Karnataka High Court
The State Of Karnataka, vs Shri. Mahadev Ramachandra Alagodi, on 8 July, 2014
Author: K.Bhakthavatsala
Bench: K.Bhakthavatsala
:1:
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 8th DAY OF JULY 2014
PRESENT
THE HON'BLE DR.JUSTICE K.BHAKTHAVATSALA
AND
THE HON'BLE MR.JUSTICE PRADEEP D.WAINGANKAR
CRIMINAL APPEAL NO.2859/2011(A)
Between:
The State of Karnataka
Through CPI, Gokak Circle, Gokak
Taluk Gokak, District Belgaum.
...Appellant
(By Sri. V.M. Banakar, ASPP)
And :
Shri Mahadev Ramachandra Alagodi,
Aged about 30 years, Occ: Agriculture
R/o Upparatti, Taluk: Gokak,
District Belgaum.
...Respondent
(By Sri.M.J. Peerjade, Adv.)
This Criminal Appeal is filed under Section 378(1)
and (3) of Cr.P.C. seeking to grant leave to appeal and set
aside the judgment/order passed by the Fast Track and
Addl. Sessions Judge, Hukkeri, at Gokak, in
S.C.No.300/2009 dated 18.2.2011 and convict the
:2:
accused/respondent for the offence punishable for which
he is charged.
This Criminal Appeal coming on for hearing this day,
Dr. K.Bhakthavatsala, J, delivered the following:
JUDGMENT
This is an appeal filed by the State under Section 378(1) and (3) of the Code of Criminal Procedure challenging the judgment dated 18/02/2011 made in S.C.No.300/2009 on the file of Fast Track Court of Hukkeri, sitting at Gokak.
2. Brief facts of the case leading to filing of this appeal may be stated as under:
The accused and the deceased Ramachandra are brothers. There was a civil dispute with regard to partition of the maddi land. On 13/03/2009 at about 8.00 p.m., in front of the house of PW-6-Avvanna, the accused quarreled with his elder brother-Ramachandra in respect of partition of maddi land and abused him in filthy language and assaulted with jambe(M.O.1) on the right thigh and :3: back of the deceased. As a result of which, he died at the spot. On 14/03/2009 at about 2.00 a.m., PW-1-Prakash Ramachandra Alagodi lodged a complaint with Gokak Rural Police Station against the accused for the offences punishable under Sections 504 and 302 of the Indian Penal Code. It was registered in Crime No.58/2009. Investigation was taken up and the dead body was subjected to postmortem examination and accused was arrested on 04/04/2009 and produced before the learned Magistrate who remanded him to judicial custody. After completion of investigation, Investigating Officer laid charge sheet against the accused for the offences punishable under Sections 504 and 302 of the Indian Penal Code. The case was committed to the Sessions Court. The accused pleaded not guilty and claimed to be tried. The prosecution went to trial by examining as many as 17 witnesses, got marked Exs.P-1 to P-19 and got exhibited M.Os.1 to 6. After completion of the evidence on the side of the prosecution, statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The :4: accused has denied all the incriminating circumstances appearing in the evidence of prosecution witnesses and gave a written statement and adduced defence evidence by examining one Kareppa Maruti Kallur, HCB No.1999 of Gokak Rural Police Station as DW-1 and got marked Exs.D-1 to D-6.
3. The trial Court after hearing the arguments and perusing the oral and documentary evidence, came to a conclusion that the prosecution failed to establish the charges levelled against the accused and recorded an order of acquittal for the above said offences and the accused who was in judicial custody was set at liberty. This is impugned in this appeal.
4. Learned Additional State Public Prosecutor submits that the trial Court erred in holding that the motive was not proved and erred in rejecting the evidence of the son and wife of the deceased who were examined as PWs.1 and 2 and other eyewitnesses namely PW-5/Yallappa and PW-10/Balappa and holding that the :5: deceased was an aggressor on the ground that the wife of the accused lodged a complaint against the deceased in Crime No.59/2009 of Gokak Police Station. He submits that the incident was witnessed by PWs.1, 2 and 10 neighbour of the accused and the deceased in the street light. He submits that the accused may be convicted for the offence punishable under Section 302 of the Indian Penal Code.
5. Learned counsel for the respondent/accused submits that the prosecution failed to prove the motive and that the deceased himself was an aggressor and the judgment does not call for interference by this Court.
6. In view of the arguments addressed by the learned counsel for the parties, the only point that arises for consideration is:
Whether the impugned judgment calls for our interference?:6:
7. At the very outset we refer to the complaint(Ex.D-3) lodged by wife of the accused and copy of FIR (Ex.D-4 in Crime No.59/2009) registered on 14/03/2009 against the deceased Ramachandra for the offences punishable under Sections 504 and 307 of the Indian Penal Code which was lodged by the wife of the accused with reference to the incident that occurred on 13/03/2009 at about 8.30 p.m. According to Ex.D-3 the wife of the accused lodged a complaint against the deceased Ramachandra. She has stated that the deceased assaulted the accused with a club. The case was investigated and final report(Ex.D-1) was filed against the deceased Ramachandra for the offences punishable under Sections 504 and 307 of the Indian Penal Code. Ex.D-2 the wound certificate of the accused issued by the Medical Officer, General Hospital, Gokak, shows that he had sustained 6 simple injuries and the history of assault is given as due to assault by jambia at 7.30 p.m. on 13/03/2009 at Upparatti. As per Ex.D-2, on 13/03/2009 at 11.30p.m. the condition of the accused was serious, he :7: was referred to civil hospital at Belgaum. In view of the above, it is crystal clear that there was a fight between the accused and the deceased Ramachandra. Under such circumstances, heavy burden lies upon the accused to establish that the deceased was an aggressor and that he(accused) caused injuries to the deceased by way of self defence. The defence has not raised its little finger as to the cause of death of the deceased Ramachandra. According to Ex.P-12-postmortem report of the deceased Ramachandra, death was due to haemorragic shock secondary to stab wound to the left thigh. As per postmortem report, there were 4 injuries namely cut wound on the left scapula measuring 5 cms x 2 cms x ½ cms on the back, a cut wound on the lateral border of the left scapula measuring 7 cms x 2 cms x ¼ cm in size on the back, a cut wound on the right side of the forehead measuring ¼ cm x ¼ cm x ¼ cm in size and 3 cms above the right eye brow and a cut wound on the latral aspect of left thigh below iliac crest measuring 8.5 cms x 3.5 cms x :8: 3 cms deep exposing muscle and vessels. Both femoral vessels(artery and veins) are nicked
8. The evidence on record reveals that the accused assaulted the deceased with jambia whereas the deceased assaulted the accused with club. Hence, it cannot be said that the deceased was an aggressor. Merely because PWs.1 and 2 are the son and wife of the deceased, there is no good ground to reject their evidence which is supported by medical evidence and eyewitnesses. It is the case of the accused that the deceased assaulted him and the deceased was an aggressor. But the same is not proved in evidence. The trial Court has not properly appreciated this aspect of the matter. The trial Court erred in holding that there was no civil dispute between the accused and the deceased and that the deceased was an aggressor though according to the wife of the accused, the deceased was possessing a club.
9. In view of the above, it cannot be said the accused had no intention to kill the deceased. In our view, :9: the act of the accused would constitute an offence under Section 304 part II of the Indian Penal Code. There is no evidence on record to convict the accused under Section 504 of the Indian Penal Code.
10. Learned Additional State Public Prosecutor submits that the offence under Section 304 part II of the Indian Penal Code is punishable with imprisonment for 10 years or fine or both and the same may be imposed on the accused.
11. Learned counsel for the accused submits that the accused was in judicial custody from the date of his arrest till the judgment was delivered, a lenient view may be taken and the custody of the accused already undergone by him may be treated as sufficient.
12. According to the trial court records, after the accused was discharged from the hospital, he was arrested on 04/04/2009 and remained in judicial custody till 18/02/2011 the day on which the trial Court acquitted him. : 10 : In our view, it would meet the ends of justice, if the accused is sentenced to undergo imprisonment for 5 years and to pay fine of Rs.15,000/-. Accordingly, we answer the point for consideration. In the result we pass the following order:
Appeal is allowed in part and the impugned judgment of acquittal dated 18/02/2011 made in S.C.No.300/2009 on the file of Fast Track Court, Hukkeri, sitting at Gokak is set aside. Consequently, the respondent/accused is convicted for the offence punishable under Section 304 part II of the Indian Penal Code and sentence him to undergo RI for 5 years and to pay fine of Rs.15,000/- in default of payment of fine, he shall under go SI for three months. If the fine amount is recovered, a sum of Rs.10,000/- shall be paid to PW-2 as compensation.
The accused is entitled for set off of the period of detention already undergone under Section 428 of the Code of Criminal Procedure. The accused is directed to : 11 : surrender before the Trial Court on 01/09/2014 and serve the sentence. If the accused fails to appear before the trial Court on 01/09/2014, the trial Court shall proceed to arrest him and commit him to prison.
[Sd/-] Judge [Sd/-] Judge Kmv