Karnataka High Court
Maximon Castelino vs State Of Karnataka Reptd By Spp on 31 October, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 31st DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL NO.886 OF 2006 (C)
BETWEEN:
1. MAXIMON CASTELINO,
S/O FELIX CASTELINO
AGED ABOUT 48 YEARS,
T/O THATTUMANE
KAUDUR VILLAGE,
KARKALA TALUK.
2. SMT.MAGDALINO CASTELINO
S/O FELIX CASTELINO
AGED ABOUT 67 YEARS,
T/O THATTUMANE
KAUDUR VILLAGE,
KARKALA TALUK. ..APPELLANTS
(BY SRI.S.VISHWAJITH SHETTY, ADV.)
AND:
STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE.
..RESPONDENT
(BY SRI.B.T.VENKATESH, SPP)
THIS CRL.APPEAL IS FILED U/S 374(2) CR.P.C. AGAINST THE
JUDGMENT DATED 22.3.2006 PASSED BY THE S.J., UDUPI IN
S.C.NO.48/2003 CONVICTING THE APPELLANT/ACCUSED NO.1
FOR THE OFFENCE P/U/S 304 PART II OF IPC AND ACCUSED
NO.2 FOR THE OFFENCE P/U/S.323 OF IPC AND SENTENCING
THE APPELLANT/ACCUSED NO.2 TO PAY A FINE OF RS.1000/-
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AND I.D., TO UNDERGO S.I. FOR A PERIOD OF TWO MONTHS
FOR THE OFFENCE P/U/S 323 OF IPC AND FURTHER
SENTENCING THE APPELLANT/ACCUSED NO.1 TO UNDERGO
R.I. FOR A PERIOD OF THREE YEARS AND SHALL PAY A FINE
OF RS.25,000/- AND I.D.. TO PAY THE SAID AMOUNT. HE HAS
TO UNDERGO FURTHER S.I. FOR A PERIOD OF SIX MONTHS.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants (hereinafter referred to as Accused No.1 and 2) were tried for offences punishable under Section 302, 323 r/w 34 IPC. The learned Sessions Judge convicted accused No.1 for an offence punishable under Section 304 Part II IPC and accused No.2 for an offence punishable under Section 323 IPC.
2. I have heard Sri.Vishwajith Shetty, learned counsel for the accused and learned State Public Prosecutor for the State.
3. In brief, the case of the prosecution and interse relationship of accused and some of the prosecution witnesses is stated as follows:
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The deceased Essac Castelino is the husband of PW-2 Lakshmi and son of accused No.2. Accused No.1 is elder brother of deceased. PW-5 Ivan J.Miranda is the daughter of accused No.2 and the sister of accused No.1, the deceased.
4. PW-1 and accused are residents of Kaudur village of Karkala taluk. The father of deceased and accused No.1 viz., Felix Castelino had eight children. There was a dispute between the accused and the deceased in relation to partition of family properties. The deceased and his wife PW-1 Lakshmi were living in a house which is at a distance of 250 to 300 feet from the house of accused where the father of parties was also living.
5. On 5.4.2003 at about 7 a.m. deceased had gone to the house of accused to enquire about his father. His father was not found in the house. There was a quarrel between deceased on one side and 4 accused Nos.1 and 2 on other side. It is alleged that accused No.1 picked up a Kodanti (Cudgle) and repeatedly assaulted on the head of deceased and also on left hand and wrist of deceased. Accused No.2 assaulted the deceased. The deceased sustained multiple injuries to his head. PW-1 on hearing the hue and cry raised by deceased came to the place of incident and saw accused No.1 assaulting the deceased with Kodanti and accused No.2 assaulting deceased. PW-1 shifted the deceased to Government hospital at Karkala wherein he was examined by PW-3 Dr.K.R.Joshi. PW-3 advised PW-1 to shift the deceased to Wenlock Hospital, at Mangalore. Accordingly PW-1 shifted the deceased to Wenlock Hospital at Mangalore. On the following day deceased succumbed to injuries in Wenlock Hospital at Mangalore. From the evidence of PWs 3 and 4 and contents of the postmortem examination report, prosecution has proved that death of deceased Essac Castelino was homicidal. The death was due to shock 5 and hemorrhage as a result of injuries suffered due to external violence.
6. The State has not filed appeal against the acquittal of accused No.1 for an offence punishable under Section 302 IPC. Therefore, the following points would arise for determination:
i) Whether the prosecution has proved that on 5.4.2003 at about 7 a.m. the deceased had gone to the house of accused to enquire about his father and accused No.1 assaulted the deceased with Kodanti with knowledge and intention that such assault is likely to cause death of Essac Castelino and thereby committed a offence under Section 304 Part II of IPC ?
ii) Whether the prosecution has proved in the course of investigation that accused No.2 used criminal force and assaulted the deceased and caused injuries and thereby committed an offence under Section 323 IPC ?6
iii) Whether the learned Sessions Judge has properly appreciated the evidence ?
iv) Whether the impugned Judgment calls for interference ?
7. The prosecution has relied upon evidence of PW-1 Lakshmi. She is the solitary eye witness. The prosecution has also relied upon the motive. The prosecution has relied upon the circumstantial evidence viz., recovery of blood stains of the deceased in the house of the accused, recovery of blood stained Kodanti at the instance of accused No.1 and recovery of other incriminating article during investigation.
8. Before adverting to evidence given by PW-1, it is necessary to refer to evidence of PW-2 Ida D'Sa. She has not supported the case of the prosecution nevertheless her evidence to the effect that deceased was demanding his father to allot share in the family properties would support the case of prosecution. PW-2 7 had deposed that their father had orally allotted the properties but no conclusive partition was effected as he had 8 children. In this connection there was dispute between accused No.1 on one side and deceased on another side. It appears that accused No.1 and 2 were residing in the house of the father of parties. The deceased was living in a house at a distance of 250 to 300 ft. from the house of the accused. This part of evidence of PW-2 has not been controverted. Therefore, I hold that prosecution has proved the motive.
9. The law is fairly well settled that motive is double edged weapon. It could be a reason for false implication, equally it could be a reason for the accused to assault the deceased. In the ultimate analysis significance of motive depends upon credibility of evidence adduced by the prosecution. If the evidence adduced by the prosecution is credible and consistent, prosecution could rely upon the motive as an additional 8 circumstance if the evidence adduced by the prosecution is weak and not trustworthy, the accused could contend that they have been falsely implicated due to enmity.
10. The prosecution has also relied upon the dying declaration made by the deceased in Govt. Hospital at Karkala. The prosecution has relied upon evidence of witness PW-12 Jarappa who was then working has Head Constable of Karkala Police Station. PW-12 has deposed that on the date of incident he visited hospital at Karkala whrein deceased Essac was being heard. PW12 enquired the Medical Officer about the condition of deceased, thereafter recorded the statement of deceased. During cross examination PW- 12 has admitted that he had received medico legal memo at about 1.45 p.m. He had not received the medical legal memo before he visited the Govt. hospital at Karkala. He had not obtained certificate regarding 9 the mental and physical condition of the deceased to give the statement before he recorded the statement of the deceased. The statement of deceased (Ex.P13) does not reveal it was recorded in the presence of Medical Officer. It does not reveal that PW-12 had ensured the mental and physical condition of the deceased before recording his statement. The first information was registered on basis of the dying declaration, (the statement of the deceased). The first information was received by the Magistrate, Karkala at 5.20 p.m. on 5.4.2003. PW-12 had recorded the statement of the deceased at about 12.45 p.m. (AN). There was no reason to withhold the first information report till 5.25 p.m. as the court of Magistrate is situate in Karkala town. The delay in dispatch of the first information report to the Magistrate would create a reasonable doubt about the contents of statement of deceased. 10
11. As already stated the sister of the deceased PW-2 Smt.Ida D'Souza has turned hostile. Therefore, we are left with evidence of PW-1 Lakshmi.
12. The learned counsel for the accused relying upon Judgments of the Supreme Court reported in AIR 1983 SC 810 in the case of Ramji Surjya and another
-v- State of Maharashtra and reported in 2001 Crl.L.J.1701 in the case of Sohan and another -v- State of Haryana and another would submit that the case of the prosecution entirely rests on the evidence of solitary witness (PW-1) who was not only interested but was inimical too to the accused. It is unsafe to act on the evidence of solitary witness (PW-1), particularly when also happens to be the wife of deceased and she had ill will against them.
It is not in dispute that PW-1 is the solitary witness. She is the wife of the deceased. There was no cordial relationship between PW-1 and accused 1 and 2. 11 In the circumstances the evidence of PW-1 requires careful scrutiny. Her evidence should also find corroboration from the other evidence adduced by the prosecution.
13. PW-1 has deposed that there was enmity between the deceased and accused in relation to partition of family properties. In the discussion made supra I have referred to evidence of PW-2, to accept the motive suggested by prosecution. PW-1 has deposed that on the date of incident at about 7 a.m. deceased had visited the house of accused to enquire about his father. Sometime thereafter PW-1 heard hue and cry from the side of the house of accused. Immediately she went towards the house of accused. PW-1 saw accused No.1 assaulting the deceased with fire wood (Cudgle) and accused No.2 assaulting on the back of deceased. Accused 1 and 2 were assaulting the deceased in the chavadi viz., slanted roof of front portion of their house. 12 The deceased had suffered bleeding injuries to his head. PW-1 brought the deceased to her house and thereafter she shifted him to Govt. Hospital at Karkala. On the advise of the Doctor of Karkala Govt Hospital, PW-1 shifted the deceased to Wen-lock General Hospital at Mangalore.
14. On the following day the investigation officer visited the place of incident. He noticed the blood stains on the floor of chavadi of the house of accused. He seized incriminating article including blood stained scrapings of the floor. On the following day at 1 p.m.(Afternoon) deceased succumbed to injuries in Wenlock Hospital at Mangalore. The blood stained clothes of the deceased were seized. PW-1 has identified the firewood stick with which accused No.1 had assaulted the deceased.
15. During cross-examination, PW-1 has deposed that she is the second wife of deceased. The deceased 13 had left his first wife. The house of the accused and the house of deceased are separated by forest; that her husband had been allotted a portion of the property under oral partition, however there was no concluded partition. She has reiterated that on the date of incident at 7 a.m. she heard hue and cry from the side of house of accused. The defence has made an unsuccessful attempt to establish that evidence of PW-1 regarding exact time at which the incident took place is contrary to her statement recorded under Section 161 Cr.P.C. In my opinion such minor discrepancy about the time of incident cannot be taken into consideration. Even otherwise from the medical evidence given by PW-3 Dr.K.R.Joshi we find that deceased had been taken to Government Hospital at Karkala at 10 a.m on 5.4.2003. Therefore there is no discrepancy regarding time of incident.
During cross examination PW-1 has admitted that when she reached the place of incident, after hearing 14 hue and cry she saw that deceased had suffered injuries. she has denied the suggestion she had not seen the accused assaulting the deceased. She has denied the suggestion that her husband was not assaulted by the accused and PW-1 had foisted a case against accused.
16. On careful consideration of evidence of PW-1, I do not find any discrepancies in her evidence. The accused have not disputed that deceased met with a homicidal death due to injuries suffered by assault. They have not disputed that there was enmity between the deceased and accused in relation to partition of family properties. They have not disputed the presence of PW-1 in house of the deceased which is situate at a distance of 250 to 300 feet from the house of accused.
17. The evidence of PW-6 Devid D'Sa that on 7.4.2003 the Police Inspector had inspected the house of accused and found blood stains on the floor of 15 chavadi of the house of accused has not been controverted. The evidence of Investigation Officer regarding collection of blood scrapings from the floor of the house of accused has not been controverted. The contents of the forensic laboratory reports marked as Ex.P18 and P19 would reveal that the blood scrapings collected from the verandah floor of the house of accused were marked as item No.C. The serology report would reveal that blood scrapings collected from the verandah and the blood stains found on clothes of deceased were of the same group. The blood stained lungi of deceased and blood scrapings were of 'O' group. Thus from the evidence of PW-7 and contents of serology report, the prosecution has proved that the blood stains of deceased were found on the floor verandah of the house of accused. This evidence has not been controverted. Therefore, evidence of PW-1 that her husband was assaulted by the accused in the house of accused finds corroboration from this circumstantial 16 evidence. Apart from this the Investigation Officer has deposed that accused were not available soonafter the incident and their house was locked. Accused No.1 is the elder brother of deceased, accused No.2 is the mother of deceased. If the deceased had suffered injuries at the hands of some persons, the natural conduct of accused 1 and 2 was to lend their hands to shift the deceased to hospital and take care of him. The accused had disappeared from there soon after the incident. They were not available either in their house or near the hospital. The conduct of the accused after the incident also lends corroboration to evidence of PW-
1. Thus we find that evidence of solitary witness (PW-1) finds corroboration from circumstantial evidence and scientific evidence. Therefore, there are no reasons to suspect the evidence of PW-1. The learned Sessions Judge was justified in accepting evidence of PW-1 to convict accused No. 1 and 2 for offences 17 punishable under Section 304 Part II and 323 IPC respectively.
18. The learned counsel for accused would submit that even according to the case of prosecution offences were committed in the spur of the moment without any premeditation and accused No.1 has responsibility of taking care of his wife and children and if the sentence is not reduced entire family of accused No.1 would suffer.
19. The learned Sessions Judge while considering the nature of offence has taken into consideration that the offence was committed in the spur of moment without there being any premeditation. The learned Sessions Judge has held accused No.1 guilty of an offence punishable under Section 304 Part II of IPC which is punishable with imprisonment which may extend upto 10 years. The learned Sessions Judge has sentenced accused No.1 to undergo rigorous 18 imprisonment for a period of three years. Therefore, the sentence imposed by learned Sessions Judge cannot be termed as harsh or severe. There are no reasons to interfere with the impugned judgment. The appeal is dismissed.
Sd/-
JUDGE ln