Karnataka High Court
Renuka vs State By Malavalli Rural Police on 9 June, 2023
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2023:KHC:20832
CRL.A No. 889 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO.889 OF 2011
BETWEEN:
RENUKA
D/O SIDDAIAH
AGED ABOUT 22 YEARS
RESIDING AT RAGIBOMMANAHALLI
MALAVALLI TALUK
MANDYA DISTRICT.
...APPELLANT
(BY SRI C. N. RAJU, ADVOCATE)
AND:
STATE BY MALAVALLI RURAL POLICE
REPRESENTED BY STATE PUBLIC PROSECUTOR
Digitally signed by HIGH COURT OF KARNATAKA
LAKSHMINARAYANA
MURTHY RAJASHRI BENGALURU.
Location: HIGH
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI S. VISHWA MURTHY, H.C.G.P)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.P.C, PRAYING TO SET ASIDE THE ORDER DATED 6-8-2011
PASSED BY THE ADDITIONAL SESSIONS JUDGE, MANDYA, IN S.C.
NO.124/2009 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 304-II OF THE IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
-2-
NC: 2023:KHC:20832
CRL.A No. 889 of 2011
JUDGMENT
This appeal is filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973, for setting aside the judgment of conviction and order on sentence dated 6-8-2011 passed by the Additional Sessions Judge, Mandya, (for brevity, 'trial Court') in Sessions Case No.124 of 2009 for having convicted the appellant for the offence punishable under Sections 304 (Part - II) of the Indian Penal Code, 1860 (for short, 'IPC') and sentenced to undergo simple imprisonment for three years and to pay fine of Rs.5,000/- and in default, to undergo simple imprisonment for six months.
2. For the sake of convenience, the parties herein shall be referred to their status before the trial Court.
3. The case of the prosecution is that, on the first information made by Smt. Nanjamma (hereinafter referred to as 'deceased'), the Police registered F.I.R. for the offences punishable under Sections 341, 323 and 504 of the IPC in Crime No.58 of 2009. It is alleged by the -3- NC: 2023:KHC:20832 CRL.A No. 889 of 2011 deceased that on 24-5-2009, in the afternoon, she found the lambs of the accused grazing in the backyard of her house and they were eating the flower plants grown by her. She objected the accused for letting the lambs in her backyard and complained her that she has said many times not to do so and again, she is letting the lambs in her backyard. At that time, the accused abused her in filthy language and caught hold her hairs, pulled and dragged her to the road side behind her house and kicked on her stomach severely and caused injuries. P.Ws.9 and 10 pacified the quarrel and P.W.2, husband of the deceased, shifted her to the Hospital and M.L.C. intimation was sent by the Hospital and accordingly, P.W.12- Assistant Inspector of Police recorded the statement of the deceased and registered F.I.R. Subsequently, on 26-5-2009, the deceased succumbed to the injuries. Hence, the Police filed the charge-sheet for the offences punishable under Sections 341, 504 and 302 of the IPC. -4-
NC: 2023:KHC:20832 CRL.A No. 889 of 2011
4. The trial Court, after hearing the arguments, framed the charges for the offences punishable under Sections 341, 323 and 304 (Part-II) of the IPC and the accused pleaded not guilty and claimed to be tried.
5. In order to prove the case of the prosecution, it examined sixteen witnesses as PWs.1 to 16, seventeen documents, and four material objects and closed the evidence. The statement of the accused under Section 313 of the Code of Criminal Procedure, 1973, was recorded. The case of the accused was of total denial, but not led any defence evidence, except marking a portion of the statement of P.W.5 as Exs.D.1 to D.3 and out-patient slip as Ex.D.4
6. After considering the oral and documentary evidence on record, the trial Court passed the impugned judgment of conviction and order on sentence. Being aggrieved by the same, the present appeal is filed. -5-
NC: 2023:KHC:20832 CRL.A No. 889 of 2011
7. Heard the arguments of the learned counsel for the appellant and the learned High Court Government Pleader for the respondent-State.
8. Learned counsel for the appellant has contended that the judgment of the trial Court is not in accordance with law. There is no eyewitness to the incident. Though P.W.2, husband of the deceased, made as eyewitness, but he was not present at the incident spot. He has elicited in the cross-examination that he was on the front side of the house. Incident has taken place on the backyard of the house of the deceased and hence, P.W.2 would not have seen the same from the front side of the house. However, he has been made as eyewitness in the charge-sheet. Eyewitnesses, PWs.9 and 10 have turned hostile. In the M.L.C. Report sent to the Police Station, the name of the accused is not mentioned, later it was inserted by the Police, subsequent to the death of the deceased. Ex.P.4 reveals the same. As per the evidence of the doctor, who has been examined by the trial Court clearly admitted that -6- NC: 2023:KHC:20832 CRL.A No. 889 of 2011 there was no external injury found on the stomach. Therefore, it is contended that there is inconsistency in the evidence of the prosecution witnesses and there is no corroboration with any medical evidence. Therefore, the trial Court committed error in convicting the accused and hence, he prayed for setting aside the same.
9. Alternatively, the learned counsel for the appellant also argued that the trial Court refused to turn out the request of the accused to release her under the Probation of Offenders Act, 1958 (for short, 'Act, 1958') as she is lady. At the time of incident, the accused was aged 22 years, married and having two children. She is the villager and neighbour of the deceased and quarrel took place during grazing the lambs and there is no intention to assault or cause injuries to her. Therefore, it is a good case for releasing the accused under the Act, 1958. Therefore, he prayed for extending the benefit of the Act, 1958.
-7-
NC: 2023:KHC:20832 CRL.A No. 889 of 2011
10. Per contra, the learned High Court Government Pleader supported the judgment of the trial Court and contended that P.W.2 is the eyewitness. The deceased made oral statement before P.W.12-Assistant Sub- Inspector of Police as per Ex.P.4 in the presence of P.W.11-Doctor and therefore, the statement of the deceased becomes dying declaration, which corroborates with the evidence of statements of P.Ws.11 and 12. Medical evidence clearly reveals that the death was due to septicemia consequent to perforation of small intestine in alleged blunt injury to the abdomen during alleged assault. Therefore, the trial Court rightly convicted the appellant for the offence punishable under Section 304 (Part -II) of the IPC and there is nothing to interfere with the impugned judgment. Hence, he prayed for dismissing the appeal.
11. In view of the rival contentions urged by the learned counsel for the appellant and the learned High -8- NC: 2023:KHC:20832 CRL.A No. 889 of 2011 Court Government Pleader for the respondent-State, the points that arise of my consideration is:
i. Whether the prosecution proves beyond reasonable doubt that on 24-5-2009 at 3:00 p.m., the accused in order to restrain the deceased, abused her in filthy language, assaulted with hands and kicked on the stomach knowingly the said act likely to cause death of the deceased and thereby, she committed the offences punishable under Sections 341, 323 and 304 (Part-II) of the IPC? ii. Whether the appellant is entitled for benefit of Probation of Offenders Act, 1958, and the judgment of the trial Court calls for interference?
12. In order to re-appreciate the evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon:
a. P.W.1-Jayamma is the daughter of the deceased. She has deposed that she went to the Hospital, after receiving information that her mother is admitted on -9- NC: 2023:KHC:20832 CRL.A No. 889 of 2011 account of serious stomach pain caused in a quarrel between her mother and the accused. At the Hospital, her mother is said to have stated that how she sustained injuries. Subsequently, after the death of her mother, she lodged a complaint as per Ex.P.12. This witness is not eyewitness and is only a hearsay witness.
b. P.W.2-Masthaiah is the husband of the deceased. He has deposed that there was quarrel between his wife and the accused on account of lambs grazing the flower plants grown by the deceased in the backyard of his house. When the same was questioned by the deceased, the accused kicked the deceased on her stomach. C.Ws.11 to 13 came and pacified the quarrel and shifted the deceased to the Hospital.
c. PW.3-Siddaraju is one of the panchas to spot mahazar as per Ex.P.1. He has turned hostile and denied Ex.P.1.
d. PW.4-Rangesh is one of the panchas to inquest mahazar as per Ex.P.2. This witness supports the case of
- 10 -
NC: 2023:KHC:20832 CRL.A No. 889 of 2011 the prosecution with regard to mahazar drawn on the dead body of the deceased at K.R. Hospital, Mysore.
e. PW.5-Shanthamma is another daughter of the deceased. Even this witness is a hearsay witness. She has deposed that her mother informed her regarding how she sustained injuries on assault made by the accused.
f. P.W.6-Dr. Hema Raju is the Doctor, who treated the deceased when she was first admitted to the Hospital with the history of assault. He sent the M.L.C. to the Police as per Ex.P.3. Police recorded the statement of the deceased before him as per Ex.P.4.
g. PW.7-C. Shankar, Executive Engineer, who prepared the spot sketch of the scene of offence as per Ex.P.5.
h. P.W.8-Mahadevappa, P.W.9-Dodda Marigowda and P.W.10-Penakappa @ Marimadappa are said to be eyewitnesses to the incident. They said to have been pacified the quarrel between the deceased and the
- 11 -
NC: 2023:KHC:20832 CRL.A No. 889 of 2011 accused, but they have not supported the case of the prosecution.
j. P.W.11/Dr. M.R. Shivaswamy is the Doctor, who had seen the deceased on 24-5-2009 at about 6:30 p.m. and the deceased was brought by her husband with history of assault. He deposed that the deceased had severe pain in the lower abdomen. Therefore, he advised her to go to major Hospital. For having examined the patient, he has produced M.L.C. register as per Ex.P.9.
k. P.W.12-Sreedharachari, Assistant Sub-Inspector of Police, who received M.L.C. intimation from the Hospital and visited the Hospital, recorded the statement of the deceased as per Ex.P.4 in the presence of the Doctor (P.W.6) and based upon the complaint, he registered the F.I.R.
l. P.W.13/Sanjeevarayappa T., Sub-Inspector of Police, who conducted part of the investigation.
- 12 -
NC: 2023:KHC:20832 CRL.A No. 889 of 2011 m. P.W.14/G.N. Raghu, Investigating Officer, filed the charge-sheet.
n. P.W.15- Jayaramu, Constable, who carried the F.I.R. to the Court.
o. P.W.16-Dr. Y. Udayashankar, who conducted autopsy on the body of the deceased and issued post- mortem examination report as per Ex.P.13. He opined that the death was due to septicemia consequent to perforation of small intestine in an alleged blunt injury to the abdomen during alleged assault.
13. A perusal of the evidence of the prosecution witnesses, P.Ws.1 and 5 are the daughters, who are hearsay witnesses, but they came to know about the incident when the deceased informed them with regard to assault made by the accused. Both of them have stated that after the deceased admitted to the Hospital, they came to the Hospital and stayed with the mother, at that time, she was alive and suffering from pain. On enquiry,
- 13 -
NC: 2023:KHC:20832 CRL.A No. 889 of 2011 she categorically stated that during quarrel, she fell down and the accused kicked on her stomach. Evidence of P.Ws.1 and 5 also corroborates with the evidence of P.W.2, husband of the deceased, who claimed to be eyewitness and he was in the house at the time of incident.
14. Though the learned counsel for the appellant tried to impeach that P.W.2 was not present at the spot, but both aged persons, i.e. P.W.2 and the deceased, i.e. husband and wife were residing at house. The incident took place at the backyard of the house when this witness was present. P.W.2 along with P.Ws.9 and 10 have pacified the quarrel. P.W.2 has specifically stated that P.W.8, who is the head of the village, said that he will settle the issue and therefore, he has not lodged the complaint on 24-5-2009. On the next date, he took his wife to the Hospital and got admitted there. Therefore, the presence of P.W.2 cannot be doubted.
- 14 -
NC: 2023:KHC:20832 CRL.A No. 889 of 2011
15. As per the statement of P.W.6-Dr. Hema Raju, he treated the deceased when she was first admitted to the Hospital with the history of assault. He sent the M.L.C. to the Police as per Ex.P.3. P.W.12-Sreedharachar, Assistant Sub-Inspector of Police, received M.L.C. intimation from the Hospital and visited the Hospital, recorded the statement of the deceased as per Ex.P.4 in the presence of the Doctor (P.W.6) and based upon the complaint, he registered the F.I.R. The evidence of P.Ws.6 and 12 corroborates with the evidence of P.Ws.1, 2 and 5. From the evidence of these witnesses, the prosecution able to establish that the accused during quarrel, assaulted and kicked the deceased on the stomach and caused injuries to her. Evidence of P.Ws.6 and 11-Doctor reveals that they have treated the deceased in the Hospital for stomach injury and on 26-5-2009, she succumbed to the injuries. Evidence of P.W.16-Dr. Y. Udayashankar, goes to show that he conducted autopsy on the body of the deceased and issued post-mortem examination report as per Ex.P.13. He opined that the death was due to septicemia
- 15 -
NC: 2023:KHC:20832 CRL.A No. 889 of 2011 consequent to perforation of small intestine in an alleged blunt injury to the abdomen during alleged assault. Evidence of the Doctor and the eyewitnesses and the deceased herself corroborates with each other that the accused kicked the deceased on her stomach, which caused the injuries. Therefore, the trial Court rightly framed the charge for the offence punishable under Section 304 (Part - II) of the IPC, a culpable homicide not amounting to murder which falls under Exception-3 to Section 300 of the IPC.
16. Learned counsel for the accused before the trial Court prayed to extend the benefit of Act, 1958, but the trial Court turned down as there is no statutory bar to apply the Probation of Offenders Act in respect of offence punishable under Section 304 (Part - II) of the IPC.
17. Learned counsel for the appellant relied upon various judgments of the Hon'ble Supreme Court as well as the Co-ordinate Bench of this Court, wherein the Hon'ble Supreme Court and the Co-ordinate Bench have
- 16 -
NC: 2023:KHC:20832 CRL.A No. 889 of 2011 extended the benefit under the Act, 1958, in respect of offence punishable under Section 304 (Part - II) of the IPC.
18. In the case of LAKHANLAL @ LAKHAN SINGH v. STATE OF MADHYA PRADESH (Criminal Appeal No.1306 of 2013 dated 4-4-2019), the Hon'ble Supreme Court has extended the benefit of Act, 1958, in respect of the offences punishable under Sections 147, 148, 149, 325 and 307 of the IPC.
19. In the case of STATE OF KARNATAKA v.
MUDDAPPA (Criminal Appeal No.143 of 1994 dated 20-4-1999), the Hon'ble Supreme Court extended the benefit of the Act, 1958, for the offence punishable under Section 304 (Part II) of the IPC.
20. The Division Bench of this Court in the case of STATE OF KARNATAKA v. CHANDRAVATHI AND OTHERS (Criminal Appeal No.253 of 2016 connected with Criminal Appeal No.252 of 2016 dated 5-1-2022) upheld
- 17 -
NC: 2023:KHC:20832 CRL.A No. 889 of 2011 the benefit extended by the trial Court for the offence punishable under Section 304 (Part - II) of the IPC.
21. Considering the facts and circumstances of the case, the deceased and the accused are neighbours. The incident has taken place when the accused had gone to the backyard of the house of the deceased to graze the lambs. When the deceased objected the accused for letting the lambs in her backyard and complained her that she has said many times not to do so and again, she is letting the lambs in her backyard, at that time, the accused abused her in filthy language and caught hold her hairs, pulled and dragged her to the road side behind her house and kicked on her stomach severely and caused injuries, which resulted in the death of the deceased. There is no other offence reported by the Police till today against the appellant. The alleged offence took place in the year 2009 and almost, fifteen years have been lapsed and the age of the deceased is thirty-five years and she is having two children. Therefore, considering the facts and
- 18 -
NC: 2023:KHC:20832 CRL.A No. 889 of 2011 circumstances of the case, I am of the view that benefit of Section 4 of the Act, 1958, shall be extended to the appellant/accused.
22. Accordingly, I pass the following ORDER i. Criminal Appeal is partly allowed;
ii. The findings of the judgment dated 6-8-2011 passed by the Additional Sessions Judge, Mandya, in Sessions Case No.124 of 2009 in respect of offence punishable under Section 304 (Part - II) of the IPC is hereby confirmed. However, the order on sentence passed by the trial Court is hereby set aside; iii. The appellant/accused is entitled for benefit under the Probation of Offenders Act, 1958, and released on due admonition; and
- 19 -
NC: 2023:KHC:20832 CRL.A No. 889 of 2011 iv. The appellant/accused shall not commit any offence and she shall execute bond for one year in a sum of Rs.1.00 lakh (Rupees one lakh only) with a surety for the likesum to the satisfaction of the trial Court.
Sd/-
JUDGE KVK List No.: 1 Sl No.: 21