Karnataka High Court
Mahabala vs The State Of Karnataka on 25 February, 2013
Bench: K.L.Manjunath, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF FEBRUARY 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL NO.544/2010
BETWEEN
Mahabala, S/o. Kempa
Aged about 47 years
Occ: Porter, R/o. Samakane
Hosabeedu Village
Thirthahalli Taluk
Shimoga District. ...Appellant
(By Sri. N.R.Krishnappa - Adv.)
AND:
The State of Karnataka
By the Police of
Malur Police Station
Thirthahalli Taluk
Shimoga District.
... Respondent
(By Sri.Nawaz, Addl.S.P.P.)
This Crl.A. is filed under Section 374 (2) of Cr.P.C.
praying to set aside the order of conviction and sentence
passed against him by the Judgment and order dated
11/14.12.2009 in S.C.No.103/2008 passed by the Prl.
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Sessions Judge, Shimoga convicting the
appellant/accused No.2 for the offence p/u/s 504, 109
r/w. 302 of IPC and the appellant /accused No.2 is
sentenced to undergo S.I. for two years for the offence
p/u/s 504 of IPC and the appellant/accused No.2 is
sentenced to undergo imprisonment for life and to pay a
fine of Rs.15,000/- in default shall undergo S.I. for
three months for the offence p/u/s. 109 r/w. 302 of
IPC.
This Crl.A. coming on for hearing this day,
K.L.Manjunath J., delivered the following:-
JUDGMENT
The appellant is questioning the legality and correctness of the judgment of conviction and order of sentence passed by the Principle Sessions Judge, Shimoga, dated 11.12.2009 in S.C.No.103/2008.
2. The appellant was tried for the offences punishable under Sections 109, 504, 302 r/w. 34 of IPC on the complaint lodged by PW.1-Saadu as per Ex.P.2 dated 13.2.2008 stating that A.2 is the father of A.1. A.1 is a juvenile offender. Deceased Ramesh and second accused were working together as Hamalis. On 12.2.2008 in the morning there was a scuffle between A.2 and the deceased Ramesh for sharing of Rs.10/- out 3 of the Hamali charges. During the course of scuffle, the deceased has abused the wife of A.2 as prostitute, in turn A.2 also abused the deceased stating that his wife is also a prostitute. It is further the case of the prosecution that thereafter A.2 threatened the deceased Ramesh stating that he would put an end to his life through his son A1 and later when Ramesh was at home, the appellant instigated his son A.1 - juvenile offender to commit the murder of the deceased. By about 12.30 noon A.1 went near the house of the deceased Ramesh and called him to come out his house and asked the deceased Ramesh what made him to call his mother as prostitute and he also asked why he did not pay Rs.10/- to his father. When there were exchange of words between them, A.1 picked up a club, which was lying there and gave a blow on the right side of the head of Ramesh, as a result of which, he sustained bleeding injuries. He was immediately removed to Government Hospital, Malur and for further treatment he was shifted to Thirthahalli hospital and 4 again on the advise of the doctor, he was shifted to Dist. Mc.Gann Hospital, Shimoga, where he breathed his last at about 3.25 a.m. on 13.2.2008. Accordingly, a case was registered based on the complaint lodged by PW.1 as per Ex.P.2 on 12.2.2008. The same was registered in Crime No.14/2008 under Sections 324 and 504 of IPC. After the death of the deceased Ramesh, the offence under Section 302 of IPC was added.
3. After completing the investigation, final report was filed and later the matter was committed to the Court of Sessions. The appellant pleaded not guilty and claims to be tried.
4. In order to bring home the guilt of the accused, the prosecution relied upon the evidence of PWs.1 to 21, Exs.P.1 to P.22 and MOs.1 to 6.
5. The appellant was arrested on 13.2.2008 and he continued to be in the jail.
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6. The learned Sessions Judge after hearing the learned Public Prosecutor and the learned defence counsel formulated the following points for consideration:-
1. Does prosecution prove that the death of Ramesha is homicidal"
2. Does prosecution prove that accused No.2 abetted his minor son namely Vishwanatha to murder Ramesha and in furtherance of his abetment Juvenile Offender committed murder of Ramesha?
3. Does prosecution further prove that Accused NO.2 intentionally insulted deceased Ramesha by abused him in filthy language touching the chastity of his wife intending that such provocation will cause deceased Ramesha either to break the public peace or to commit any other offence?
4. To what order?6
7. After considering the entire evidence held point Nos.1 to 3 in the affirmative, accordingly, the appellant was convicted for the aforesaid offences and sentenced to undergo imprisonment for life and to pay a fine of Rs.15,000/-, in default to undergo S.I for a period of 3 months for the offence under Section 302 of IPC and he was also sentenced to undergo simple imprisonment for two years for the offence under Section 504 of IPC. This judgment of conviction and order of sentence is called in question by the appellant in this appeal.
8. Learned counsel for the appellant contends that the finding of the Sessions Court is perverse and not based on proper appreciation of the evidence. According to him, in order to bring home the guilt of the accused, the prosecution has mainly relied upon the evidence of PW.1 - complainant, PW.2 - wife of the deceased, PW.7 wife of the complainant, PW.8 - sister's daughter of the complainant, PW.9 - neighbour, and PW.10 to show that an incident had occurred in the morning of 12.2.2008 between the appellant and the deceased in 7 regard to sharing of Rs.10/- towards Hamali charges and also the incident said to have been taken place at about 12.30 noon in front of the house of the deceased. He further contends that the Trial Court has also relied upon the evidence of PWs.13 to 16 - Doctors, who treated the deceased and also the evidence of PW.20 - the Doctor, who conducted autopsy over the body of the deceased to show the death of the deceased as homicidal. According to him, the prosecution has failed to bring home the guilt of the accused and the prosecution has miserably failed to prove that the appellant had instigated his minor son - Juvenile offender -A.1 to commit the murder of the deceased Ramesh. In the absence of the material evidence merely because, death of Ramesh as homicidal, the appellant has been wrongly convicted. In the circumstances, he requests the Court to re-appreciate the entire evidence and acquit the appellant for the aforesaid offences.
9. Per contra, Sri.Nawaz, learned S.P.P. submits that none of the grounds urged by the appellant are tenable 8 because, the prosecution has proved the guilt of the appellant beyond reasonable doubt by examining the witnesses mainly, the wife of the deceased, who has been examined as PW.2 to show that in the early morning of 12.2.2008, there was a scuffle between the appellant and the deceased and that the appellant threatened the deceased stating that he would take away the life of the deceased. He further submits that PW.8 - Manjula - sister's daughter of the complainant has deposed that at the instance of the appellant, A.1 had gone to the house of the deceased and assaulted him with MO.5, as a result of which, Ramesh succumbed to the injuries. Therefore, the appreciation of the evidence by the Sessions Court cannot be held to be perverse. In the circumstances, he requests the Court to dismiss the appeal.
10. Having heard the learned counsel for the parties, what is to be considered by us in this appeal is: 9
"Whether appreciation of the evidence by the Sessions Court is just and proper or does it call for any interference?"
11. Learned counsel for the appellant does not dispute the deceased Ramesh and the appellant were working together as Hamalis at Bejjawalli village and that there was a dispute in regard to sharing of Rs.10/- on the early morning of 12.2.2008. But his case is that the appellant did not instigate his son to commit the murder of the deceased Ramesh. It is also not in dispute that when the scuffle took place in the early morning of 12.2.2008, both the appellant and the deceased have abused each other touching the chasity of the wife of each other calling their wife as prostitute, this fact is also proved by examining PW.2 -wife of the deceased. It is also not in dispute that at about 12.30 noon when Ramesh was at home, A.1 called him to come out from the house and questioned him what made him to call his mother as prostitute and also why he did not return a sum of Rs.10/- to his father. The 10 evidence of PW.8 - Manjula, an eyewitness to the incident, is clear and clinching that during the altercation the appellant was not present and it is only A.1 had come near the house of Ramesh and when there was an altercation A.1 took MO.5, which was lying infront of the house of the deceased and hit on his head and it has also come in the evidence of PWs.7 and 8 that on account of the assault made by A.1, there was bleeding from the ear of the deceased; immediately he was shifted to Government Hospital Mallur. From there, to Government Hospital, Thirthahalli and on the advice of the Doctor, he was shifted to Mc Gann Hospital, Shimoga, where he breathed his last on the early morning at about 3.25 a.m. of 13.02.2008. The Doctor, who has conducted autopsy over the body of the deceased Ramesha issued postmortem report as per Ex.P.20, has deposed before the Court that the death was due to coma secondary to head injuries sustained. So from this, it is clear that the death of the deceased 11 Ramesh is considered as homicidal as the same is not in dispute.
12. The only question is; whether the appellant can be connected to the offence committed by A.1 or not?
13. PW.1 is the complainant. Complaint is Ex.P.2. On perusal of Ex.P.2 it is clear that when the incident took place he was at home. The house of the deceased and the house of the complainant are side by side. Ex.P.2 does not disclose that A.1 had come near the house of the deceased and was quarreling with him by demanding Rs.10/- at the instance or instigation of the appellant. What is stated in the complaint is that he came near the house of the deceased and questioned why he called his mother as prostitute. If a minor boy after hearing the deceased calling his mother as prostitute and in the circumstances, if he has assaulted by taking a club, which was lying at the spot, it cannot be inferred that A.1 was sent by A.2 instigating him to commit the murder.
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14. Then we have the evidence of PWs.7 and 8, who were also present at the time of incident. On complete scrutiny of their evidence; what we have noticed is that they have also not deposed that A.1 was sent by A.2 instigating him to commit the murder of the deceased. It is A.1, who is juvenile offender, has come near the house of the deceased only to question the deceased why he called his mother as prostitute and why he did not return Rs.10/- to his father towards hamali charges and in such circumstances, if A.1 assaulted the deceased with club, which was lying there, by no stretch of imagination, it can be inferred that A.1 was sent by A.2, to convict him for the aforesaid offence. In other words, a perusal of Ex.P.2 and perusal of the entire evidence let in by the prosecution, there is no iota of evidence to show that A.2 was sent A.1 to commit the murder of the deceased. Therefore, we are of the view that the appreciation of the evidence by the Sessions Judge is perverse and liable to be reversed. Accordingly, 13 we reverse the finding of the Sessions Judge and pass the following:
ORDER
(i) Appeal is allowed.
(ii) The impugned judgment of conviction and order of sentence passed by the Principal Sessions Judge, Shimoga, dated 11.12.2009 in S.C.No.104/2008 is hereby set aside.
(iii) Appellant is acquitted for the charges levelled against him.
(iv) He is in judicial custody. He is ordered to be set at liberty forthwith if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE SA