Karnataka High Court
State Of Karnataka By The Janwada Police vs Raju S/O Venkat on 11 November, 2010
Bench: K.L.Manjunath, B.Manohar
All are R/at Aliamber
Village, Bidar Tq. .g RESPGNDENTS
(By Advacate Sri.Basavaraj R Math) ¢p7u
This Criminal Appeal s:issf'£iisd >VQpder
Sec 378(1) & (3) of Cr.P C. tdQgrant'1ea&é,to
file an appeal againsfT¢the=_judgfié§t_ date§>
28.9.2005 passed by sT'e.-5:211, in sc
No.10?/2002 acquitting ths'g;espondents§accused
for the offences punishable uޢgr_SecsL448, 302,
325 R/w Sec.34 of :rpc."--y--. -- "
This AppeaL is cdfiifig Sp £5: final hearing
this day, MANJUNA$HVJLpé§li§ered~the fellowingz
U' 2«.f'E7 14%. T
Janwafia pdliss hafe some up in this appeal
under Sea.37§Ki)=s& p(§§ sf Cr P.C. challenging
tfis "sjfi$gfients of ' acquittal, """ acquitting the
respbnfieptéspcfissd persons for the cffences
V".3\pi11:ishai'}:::le--._ firgéier Se<:.448,. 302 & 325 Rfw Sec.34
_ 'f ' Lfipc ._ 4_ V
. pg2»X Cass of the prosecution in brisf is as
p=,hsreunder:
A
:f'j'"/A
About five months prior to 8.1Qi2flQif an
attempt to commit rape on CW5i2h;.Rathameaiw
daughter of Hanumatha Wadda: was; maee: by heel
taking her to the garden.lehd eShMalla§§a.U§§ar;;
Ratnamma is the eleer htethet's":eauehter of
deceased Laxman. Décéasaa iaxfiah en coming to
know of an attempt g¢"c§mai§i§a§§f§n his niece
had assaultei %?£fl§§ tyihg hie ix) an electric
pole. Oh aggafifig Of the"s3he, A-1 had enmity
with the ,décea§§a "haeeeh. There was also a
dispute betweefi ¢fleJMaiuthi and Laxman sons of
Vehkafitfiin% respeetwiof a quarry and the said
quanfei had iakgn place at about 5 nmnths back
V§Vhetweefi.Maruti and accused persons. In the said
jquarrei Laxman had supperted Marutis Therefore;
h*iae¢fisedh persons had enmity with the deceased
wh*,ALaefian. Three days prior to 8 10.2001 Laxman had
h"®sent his wife to her parental village Kankatta.
On 7.10.2001 at about 9 p.m. in the night Laxman
a'f':/"
5
the ground in a lane between the Vhoeeeiiofud
Hanmantha and Mahadappa. éwéfi" noticing htwo
injuries on the chest >and tone einjnry5"on%
Umbalicus on the body of ra§mag,de§gfii§¢d with
Laxman. On enquiry lasmaniintorhed hie that Ami
gave two blows on his fihesfi with a sharp edged
weapon and A¢§ag%&¢.égehh¢ow int his umbalicus
with 'talwar~ and ithate eh "enknown. person caught
hold Laxman whiiefihfi ti; assaulting him and he
breathedt his°;iastrhat*:i a.m.. When the oral
dying 'dec;aratioh" was made by deceased, CW~9
Amrfith and CW<1Q Vishwanath were present, CW~6
hjDoddaAuVenkatgi CW--7 Sanna Venkat and CW--8
""Kashinathh-sons of Thippanna, brothers of the
hedeoeased'Laxman were also there and later dead
ihhv_ body of the deceased was brought to the house of
aVd"Laxman. PW~5 later informed the police and
lodged a complaint and based on the complaint of
PW~5 police registered a case and they took up
{»
investigation thereafter chargevsheet ea; filed ,
against the accused persons tnee: $eCȤ43[t3G2
R/w' Sec.34 of IPC. Ar3;_& é*AeereTsefifeyede<esg
accused based on the voleetery eonfesstoo made
by them before thefitP$lee§Li#Tfie tease was
committed to the Sessioes Ceetfigtgtdar. Since
accused not ,eeeeaedflt%e;lt§1tee&: claim to be
tried, proseottieeeiietntieeeeetdence and relied
upon the evieeeoe of efie; to 11 and Exs'P-1 to
13, M.Os.lutto-Véttefidoxerticles 1 t& 2. The
Sessions: §éoptt;x"wefter hearing" the learned
proseegtoffi age tthe defense counsel fermulated
igtthe foilowiegiooints for its consideration:
t"e"l. Whether the prosecution proves that the
tdeath of Laxumen s/o Thippanna Waddar is
*-e homicidal in nature?
MWHmt"e
Whether the prosecution proves that on
the alleged dateg time and place A-1 to 4
in furtherance of their common intention
have committed. criminal trespass in 'the
house of deceased. Laxumen s/o Thippenna
Weddar at Haliember village, so
:2: ,»
fie
"2
punishable under Sec.4é8_ R/w""§e¢f3§_.efHu'
IFC., beyond all reaeoeabletdeubts?ea""
Whether the proseeetiofiAlproveeslthattyefia
the alleged date; time and_placeg*Ae1 ts.
furtherance ,"of 'their j common
intentien have intefitienally-_eemmitted
the murder of} Laxumane*s/0 Thippanna
Waddar by assafilting him with knife and
telwari . .
e in
so punishable fihdet"See.302 R/w
Sec.34 of IE0 and beyeed all reasonable
doubts2LVgf_..* I - t ~*
Whether "tee proseeetien proves that on
the allegeé date, tifie and place, A-1 to
4 g in V'furthexance of their common
intention_ andg thereby A~l voluntarily
caused lgrieVousfl~hurt to CW~l Manik s/o
Thippahna;-Waedai' by assaulting" hinx with
eetehe, whiefi used as a weapon of offence
"likely,te cause death of said CW~1 Manik
"so punishable under Sec.325 R/w See.34 of
VsQIPCfehdfbeyond all reasonable doubts?
5.
t*tand the accused were acquitted by its
dated 28,9.2G®5.
"WhatWdtder?
4lCe"{app;eeiating the evidence let in by the
Vllgfireseeetlen and the defense, held point No.1 in
.l'm_the affirmative; points 2 to 4 in the negative
judgment
Challenging the same, present
appeal is filed by the State.
W
3. We have heard Smt.An&redha M.Dessi, Adel.
'1.'
SPP and Mr Basavaraj R.Msth, counsel {or _the
respondents.
4. The main contention of sAddl:§ SEE Visfethet Sessions Court has committed a'seriofis error lno acquitting' the aCCuS§fi.jpQgé§nS{' h'Accorfling to her, Sessions Court h§i&,§Wote1ép9reciate the evidence of PWf5g,7 §5fl%§V§E??%fi§Jfi On account of the wrongggépkgfisstgflp_é§fiey%WenCe let in by the prosecdtroégtgtriegttcofirtf has come to the conclusiohhrtheteathettfirosecution has failed, to bring home the guiit 5% the accused and further hei5;s§hst1hthe erosecution, has failed. to prove beyond 311 reasonable doubt, the charges leveled f~ageinstV vfthe accused persons. In the __cireumstances, she requests the court to rew the evidence of P§§'s~5, 7 to 11 and "'»_:é§éise the findings of the Sessions Court and er W incident could not have been seen eithefi hytPfi¥§a or 7 or other witnesses who have been eited;asV cW~6 to 10 and there is lot of £fisér§pa9¢§,§5_ the oral evidence let inwkfiy the hptosecntionth According to lung PW%3aAmffi§5e§fiE> i§iP$~9 haS not supported the case ot the pgéeeeution. PW--2 Kashinath has ifiéfih shppotte%rtthe5 case of the prosecutioni hifihfe Kfiiseenethn fine is PW~lO who was said ®to_eheig§tesent_--aiong with LPW~5 when dying decletetion flee g§§en by the deceased has not su§g@%tad the cese of the prosecution. He fufthef submits that considering the evidence of 'h_QW-8 ibffshieashenkar on account of the injury _eeusteined: by the deceased, deceased could. not ¥haved»ehesed 'unknown jperson and cotld. not have 'écéegéd the distance from the place of incident iVfami to the spot where he was lying ix: a lane Vhetween the house of Hanmantha and. Mehadappa. According to the medical evidence, considering £7 that enmity between A~1 and the deceaseé sg§gtéa"= when A~l made an attempt to coenit rape of_CW+i2 Ratnamma, daughter of elder Brother hof"'Laxman;L and he further contends that the aiieeeo enmity between deceased and aoonseehtersons on account of the quarrel between fiaruti aha hakman sons of Venkat has a¥$6&§%#%b%g%4%S%$%i$gfied¢ According to the had an illicit relationshiP'®ith the hire of one Pandit, that may be the reason far the cause of death of the deeeasefit 'in the circumstances, he requests the conrt' to_ dismiss the appeal and confirm the Vhierder of aoqnittal.
i5;§Irgas¢pg7 heard. the counsel for the parties, hhthe'ohly point to be considered by in; in this 'Q'a§§eal is:
"Whether the judgment of acquittal is based on perverse findings of the Sessions Court and whether the appreciation of evidence by the Sessions Court is just and proper? V Lu
6. The homicidal death of Laxman is not in dispute. He died on account of the injuries sustained by him on 8.10.2001. incident is said to have taken p_1,a'o'e. the house of Laxman when he was:=__sleepi;ng'_"alon_eKat night. The prosecution': hes not, evidence to show when the____l:i'n:ci.dent' place, there was any light""*»leit.hg;r:V house of Laxman or outside, the Vhou_s'et'»._oi' «._T;axman. Even according to=:',__»house of Laxman is a singilel" spot panchanama shows is having two rooms which is conttary to the evidence of the brother o':T:'_ the coixnplainant. According to the pros"e_c'uticvfifl 5: 2 assaulted the deceased by using t'alwar<";and knife. PW---8 is Dr.Shivashankar "eo.ndu'cted post----mortem on the body of the has noticed the following injuries on V thee vlbody of Laxman:
K' 3/ f;s§,:' In » says that he can walk for 2 or 3 steps depending on his strength and state ofishock. Now with the above injuiiesg when there was no evidence to show that thégeaeasfilight in the house of the deceased, conld"'he'Kablei tow chase an unknown person and coweh a distance of 40' to 50' where he 'was dlyingh in! a *lane' between the houses of Hanmantha and Mahadafifia and was he able to give oral dying deolaiation to PW~5 in regard to the I-':'at'tAack-..Aon by A-1 & 2 by using talwar and"a"knifeXg "At the first instance, when the ld=V_alleged 'incident took place, deceased. was l, sleeping ,at' home. When there was no light, Rhacoused,V§ersons are said to have attacked. by using talwar and knife and when he has received dsuch a blow, is it possible for the deceased to chase unknown person and was able to come out of lx the house that too in the night when he was screaming saying 'sattenappo'. Even according to
-& §""'::/ I6 PW-5, after hearing the scream he also chased Aw 1 & 2 when they disappeared in the dars1%"'»swhile returning home he noticed deceased was iginfi in a lane, at that juncture an~~borai:.Adyin§»k declaration is said to have been made in_frontVh of CW--6 & '7 and therefore ii; is d$fficnlt--to believe the theory of dying declaration in view of the nature o§.w}njnriesflssdstained by the deceased on the vitai partsfof his body.
7. Though "knife 'was§'Séiz§d, for the reasons best known to the prosecution knife has not been marked as*materiai=objectg One talwar without _h_andle«§;: marked" as MO----l. The main contention of' thg ,;espondents' counsel before the court °"«..,___be1¢'w is thfa_.t5'Vif a talwar without handle is used tu_for the falleged offence, person who has used Vxtalwarfshould have also been injured and Hark .fshonld have been there on his hand. For the _/3 $34.» £9' reasons best known to the prosecution, prosecution has not send accused persons viz., A~l for medical examination. In addition \tO that, why CW~12 Ratnamma has not been examined5 by the prosecution has not been _éxp1ainee,7t¢>,?
show that really there was as enmity hetweenthe deceased and the accused' oersons;ud H§imilarly, why A-3 & 4 were arrayed as a;¢g;ed has also not been satisfactorily wtestahlished! In the circumstances}; Wei egg lqfit that opinion that the trial court has considered the evidence let in by the rrosecntion dd; detail and vma have also gone throudh_ the djndgment of Sessions Court. 7AcCordin§* toé us, 'court """ below' has examined. the esidence let ih by the prosecution in detail and wHafter'scrntinizing the evidence has rightly come dlhtofi the dconclusion that the prosecution has h{Vfaiied to tming home the guilt of the accused .k"»__ afiéf has failed ix: prove beyond. all reasonable 5?' m doubt the charges leveled against the accused persons. Based on the medical evidence and the place of incident said to have taken"place;*it is difficult for anyone to believe: that lthefi accused are involved in the offence of Ciime in w question. In the circumstances, we dc not see any merits in this appeal if,"
8. Accordingly, this apfieal'is"&;§missed. S€§;;g"' E as , 5 -
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