Karnataka High Court
Venkatesh S/O Narasimhalu vs The State Of Karnataka on 21 October, 2009
Author: Subhash B.Adi
Bench: Subhash B.Adi
{J THIS CRIMINAL A§:>f?'E£'5xL, CT;(:7M'}NC} ':ONv "
HEZAFEING, THIS PO LLOWI NC}: --
JU{>G rv:.r;N'1'"' This appeal, A_ ' V'éigé§é:"1st. the judgxneut in S.C.No.4§§/'-2O'§§4?u'1 iiatéid by the Principal 2 I
2. sheeted by 11m: E2151 c:1:'q:1¢§ r ix*{f"(::9:i11-1:: NQ162/2003 on 2 ,-Jf.f€~3I1Cf3S punishable under Sectigrxs 5:24, 506(2) of we. Howczvex', me " " __ i11j:1_.:1i"€3q;A1-L,s1:1(;Cu1fib€d" to the ifljL1I'i€3S. The police with '(ha _ 1u:€:'1*111i'ss_if)Ii" .,_<V)f the <:tourt, added offence punishable 11:'1_c'i<:1' Séctxtfirl 3023 IPC. 011 inVest.igatj0r1, the polices f11e<:i~~ (:'I;_1.31'ge sheet for of'fenc€:s pumshable under ' . ' f;3ééi':ior1s 504, 506 and 302 (H) of WC.
3. The of the prose<:ution is that, the statement of the dec<:as<':d/ complainant was recorded at about p.111. on 21.09.2003 wherein he alleged that at about 8.00 pm. when he was seliing Banana before DAY, THE ci;.;>u;;§i;§T j;m:1VV,t\z'2s:12;::>' *r.;_~u:;;' if %\ 2:.
SN ' 'I'a1kies, 0116: Javed Pasha 015 £335.11 came and told him that Vc§1:1 ka,1;es1'i/ av<:<;u_3h6-vd ..:1Sk€:<1 * for Banana. The deceased 1'<:;;f1.T1.is{é:<.:1_ '1::x_ giv.é: I"38,I:'1a,1f£?1, on the grotmd that Vc*:hh1keV1t§é:§Ih/\r1ot paid the arream. Ixistemzig toI.tit1ié,:f\f€tr11§z;tgé;vh and abuseti the cleceasgxil h;1f;s;§éiiif11teci by hand on the chcekjv When deCea:~36:(i fell down,_" with knife ([211 his st.omaE:1j: '' V' injuriczs. This was '\\'i'€fl€3SS(id"b_V 'PW-'3, and PW~;3. The zleceasézci was " 2 ir1j'u}:ted__L k<:*:£[pi1i1.gA}h1is one hand at the p1aC.(-3 of in_j11r'y, ' wé::--;t.T holjse with one Baba. His t)1"0t.hc:*1' PW2 who ' was,'1'1€§'a13"_fi"1é:T;;.house, on seeing the i1"1jured/ c0111p1ai11a11t hé.4''to<)'§§ . Efiin to the }f1<)spital and he 1<;110w abom; the i:h1<:ic1e1'i't mic} at the District Hospital the: deceascsd gave st':éu'.énh1ez'1t; to PW12 ~ the Head con.<stab1e who 1'<:<1:01'<;ie::(1 . -his stat;<:111<:nt as per exh.ibit P12, based on which a c:as<=:
was registered in Crime Nh().162/2003 per exhibit P13. '{'h<:reaf{.é:r PW17 «~ PSI visited the spot, conducted €96'/Al:4
spot maha La" ' 1* as per exhibit; P10, recorded stat6:mef1¥':se»:)f " PW3 and PW4, the eye witrexessee. "The c}<>_t1'1e_sVOf~VA'tJ1€;e deceased were seized as per Mead lanci 'C~3.P'I= took up furthex' 'mvestidgati(5n_V"and oi:._i1'1xrestigatf0n he filed the charge sheet'.:' A'
4. The aeczlisedd-d and brouglit;
before PW 13; the (:<:)urt.. The trial Cour? the charge against;
accusiediv guilty and Claimed to be = I V _ .5. The' p_'1'*0:3cf;'c1ddxEidc)1'i in support of its case, examined i-("to PW 1V8",WdI11a1'kc:d exhibits P1 to P20 and to M0 3. On defence side, exhibits D1 to --D3 inarked in the evidence of the prosecution 3vit1'e1<5sv',¢§s.
6. The trial court on appreciation of 'the V. .evideI1ee held that the prosecution has proved its case for offences punishable under Sections 504 and 304-11 of {PC and sentenced the accused with 3 momhs simpie %>><*i/r imprisonment for an 0ffe11ce ptU,1islj1all§le mcler 504 IPC and 5 years rig0rdus_ iIr1p'risemnefitA.ga1*1(l afi fine of Rs.'2,0D0/ -- in default, 3 usi11lple_u:ihlpI'Vifs01»;me11t for an offence ptntisitéible " 3(l4gll of IPC. It is against this * has filed this
7. was appointed by this behalf of the appellant since hqtle: the appellant despite several acljQu;*11Irte:<:ts. , A S V S.1fi.Avi"1'1;ets'11V Upaloankar. learned counsel for L' _ é1p_pel'lai'1lt;-- submitted that, according to the p1'oseclL_1ti0i_t Vtfase, PW3, PW4 and PW5 are the eye wiitI1eSSes. None of these witnesses have supported the " ealsel of the prosecution. In fact, they lmve denied the ease of the prosecution anti in turn they have stated that, they have not seen the incziclem. The trial court has relied on the evidence of PW2. PWC2 is none other than the brother of the deceased. Apart from this, he is 5% 9;
l 6 an i1'1t;e1'ested witness. H6: is 1W1.()t/ an eye wi;t§i'1ese$V"i%:(5' * incident and in the cross exa1:1'1i:1at.i--0;1 he hé£sI.:;d':13itttei3.V that deceased was involved itI'1'"sVeV.e1'a1 e1*iti1i1;1el 811d as such his evi(ieI1ce is 'I.1_(.fJi'€..'f;I'11SV.'L worth'j,f tfe"he'1'e1ie(1"
nor his evidence of the pr0seeut.ion. He VA -tile trial court.
relied on the deceased.
Even PXV .'.'i'ItI':l':'v:C'::'tV,.v7"(V"§' to the incident and she if'; that at; 7.00 pm. her her house with i1'1jury in stem ach é:*1<}_[ h<;:",'-i11fo1"1':ied her that Venkatesh/ accused heereinj'~. has stabbed. In the cross examination a is 'made to her that her husband is addicted to--.__ d1'i.nk_i1fjL--g and he had several enemies, and was Ait11tvc)iv:s:;t<?'i in czrimirzal cases earlier also. The other 'wit;riess relied by the prc)seeuti011 is PW12 - police .:§eo1'1stab1e who was on MLC duty, went to the hospital and recorded the statement: of the deceased as per exhibitP1'2. He submitted that achnitted1_V the d€C(3aS(3d C(')1'1d'LIC'C(id the p0stmo1*ten1pf ~. and in his CVidE:I1C€ he llahs'-eft;9~.t:e<1 :1e§;§:;§§§eéi"'ee111ci 'V have survived if he had thi'0n'1hc>H_embo1us. He further relied 6):':-.._zi::';'1e D» PW8 who had examined the de<:easeVd_ T'<>1_1 V1h:v\a?f1e1*ei1'1 he has stated that §i1e1j«:.hifr:(1 and was able to speak. --e.xaI11inahtj01": he has 'the basis of his memory and begs He has also admitted that 1*101*1)1a11§/it. _Visv..not-_pC.sSib~Ie to say condit:ion of the patient; ~ . A whc.§,weis €;X,é3.11ii'i°7l :d__§me year before. ,1 evidences do not support the casc-: of the *ph3.seei.1f'i'e11'j/(.6 (1€if1I1ii.€,1}' come to the C<)r1C1usi<)n as 1*eg§'-'a1'd'---VAt()" the mental Condition of the deceased. If this eevic1e;'ei€:e is igr1()1ed, there is no other evidence which '..si1'p'p0rts the case of the pr0se(:utio1h1. The 1113111
-"wiht1f1<*:sses namely PW3, PW4 and PW5 have staterl to be eye witnesses to the imtident having been treated as h0s%:i1e and mything having been elicited in the cross 9%», «r' 13 Cheek and back. When they <:($_i'ie1'p1a1'h.a n§e. fe1iL_L"'(1.{5x¥€;1, accused stabbed him wit:I*1'~...1<r1ii'é'- in .t.he.Vz,+1'bd'a>1:1e11. held his hand on the i1'1ju1'ed' pQ1'T,i(>1'1 c'>f~t:1_e1e st1é)I11aeh and wem to the If1O1_lS(iA{iI,;bl'(iV 'w_ho was outside on seeing him teok llip; PW5 where his &9t;21t.e1i11:e415fi;::\;§§x{aA;§3._ has c:ateg0ri(::a11y stated V."<;11_i'ti.Vjv' in the said hnspital wf1gife'--Vfh6*' a§§1:iiiv{;.t/czci. He has 1%e<;:ord<=:d the statVen1'e:1t p.111. on 21..9.2()03 and aCe():'<iii'1g1y"Ee1eregeistieieed the Case per exhibit P13 in M). '3 at 10.45 p. In. on 12 1.9.';2003. There V 1Ae1"gx_£'e§iiaQ:'1.t,0 suspect the eo1Te<:t;1'1ess of the s1,at.e1e11em given the deceased as per exhibit P12. However <:();1:1p§.ai1e1a1'1t has statecl that PWZ5 and PW4 were the VW.i.;t.116:sses, they were }1)1'6:sem: when the ie1'1<:idem; 't:00l«; place, h<:swever, 1:116}; have f,LkIT1(?.d hostile. 111 the 2::bse11ee of the eye witnesses whether exhibit P12, eviderlce of PW I32 <:m1p1er;i with eviderme of PW2 ~ «$735» . v eye witness but when his biictkief' c0r._11i-i'1g.__.'with"' 21:17 injury, nattiifaliy PW2 wou,1d_ asiehcw the.-".LiI:ij't.ii'yV 'hiacii occurred and in the normal V"ci.i*c': n1tistéiI1_<:ies--V-:t11e;: injured bmtiriei' would have Jexplaiiiiedi, ._there 'His nothing um1atu1"a1. If the evidence of '}P\V7s-*2 and .'jev__i<f.iet1ce of PW 10 ~ the wife whc also {>135/he-nt"~e}t. that time, they make it clear tiiat, ti1e'"'i1fi__1iries.xwefe ihflicted by the accused, even "'PVE'.4"-a11d""PW5 have turned hostile. II1jL1Iyzi.S "bieed.ii1g"'~iIij ,, ?4.i'1(1 it is a grievous injury as opined by as *'~--'.;he wound certificate issued by zexi1ibits'P7 82. P8. He has opined that the _ injury, incise wound measuring 4 ems.
X in his evidence he has stated that it is gi"iev0tis_ iiijury. The evidence of PW2, PW8, PW 10 and ":i_° and exhibits P8 and P12 clearly show that the éiccuseci had inflicted the injury in the abdoiiien of the " "deceased.
16. Under Section 32 of the Evidence Act, the statement of the deceased whether written or verbal of 19 torn hepatic veins after blunt; force .1I1j1e11'f,'Z': 'to may be carried on emboli.
120. From the evidence of »PWu the doctor who admitted "*~d(:(:e2ise;i',xtlie EioetE)r whd performed the pQst;g101*t;eif1:A. the ""d()C;t,01" who conducted surgexjv, that the injtnjv has resultecl from 1:h1'ombe e1:nbo1ism:' " of the p1*osecutio1'1 that fiieI'c:. ' E;o1'1e which has resulted in throm be e1nbolisn1. In the _ii_ght. bf fthe_¢aL1vse""i$f death and in the light of the <ieee'a$ed «.b6:iI1Vg 'éiiiV€: from 21.09.1002 to 25.09.2003 _ bejgdgg and underwent; surgery and Eater (1'ef.f<«:1(>pir1'g ' com plieations of breathlessness s1_1E')seqj{;eIV1tIy ur1c0nne(:t<i:d with the injuries s11fl"e;'ed d1_1_eA'1f'£.o stabbing the a<::c:used, same cannot. be held VA 2 M _'_{i1at the death was due to the injuries s1n'TeI'ed by him. When the evidence of doctor is clear and shows that the death was not due to i11jur*1'es suffered by the deceased, it cannot be holnicidaj death °a1f1{1_ in the homieidhal death questio1;:__"'ef coAr1~nec3:i_1'1g ..(}fi'€IlC(:'v . L' punishable under S__€:.v(3'£'1€)1'1:_§k5§3r.+IY;--._» -- '.e:)pivpii0I1, does mot arise. V . j 'h V. _
21. If the ,evider 1c:e.:.1eac1V--_ iiIE'1eVjV3.1:'o'§see1,1tio11 proves that the " and has not resu.1t:ed it that the accused is not Aehfiivthtctdljy, the injury inflicted is grievetxsh ~evider1ec: Clearly shows that the knife useti f_(:51*VaLé;séi.11f"'t"1as been seized by the police and ej.ride1:1ee <5f"'E~'Wi2, PW 10 and PW12 shows that the V éieeueed inflicted the injury. In my opinion, the '' .aeeL1se(1'7[ had C()IIlI11itt€d an offence punishable under Se<::iE)n 326 of IPC in as much as the accused has " vQ_1mi'ta1'fly caused grievous hurt by means of stabbillg éilicl as such is guilty of an offence punishable m1de1' Se<:'u'(>1:1 326 of IPC.
".22. The learned Counsel for the appellant submitted that there was no pre motive to cause injury. The injury 7%/"h' 22 Rs.3,00()/ -- in dcfauh: to t_11'1d§3t4gd"::.i.n1f)1é:.; «i1T1Vi'1fJ1fiS()1§i111n€'nt» i V for three moxlths. If Lmdcirgorxrz sentence for Q16 fofif 1'1:1()r:ths the same ' 'a3-.f¢1.(i no n€,c:d for the accused to ACCOI:{1ii:1g:fi, fie is partly aflowed. is appointed as Az11j(§'Li§V <:gi;:g;é:,:*;f:1;{1e§§ i1§éaV fl.;at.Rs. .3 poo / ~. Sd/-' JUDGE