Karnataka High Court
Mr. Swamy Gowda vs State Of Karnataka on 8 September, 2022
Author: K.Somashekar
Bench: K.Somashekar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON'BLE Mr. JUSTICE T G SHIVASHANKARE GOWDA
CRIMINAL APPEAL No.1053 OF 2017
BETWEEN :
MR. SWAMY GOWDA
S/O MR. RAME GOWDA,
AGED 31 YEARS,
RESIDENT OF
GOPANAHALLI VILLAGE,
DUDDA HOBLI,
HASSAN TALUK,
HASSAN DISTRICT
PIN-573 217.
...APPELLANT
(BY SRI./SMT : I S PRAMOD CHANDRA)
AND
STATE OF KARNATAKA
BY DUDDA POLICE,
HASSAN TALUK,
THROUGH THE
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001.
...RESPONDENT
2
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED
15.04.2016 AND SENTENCE DATED 22.04.2016 PASSED
BY THE LEARNED II ADDL. DIST. AND S.J., HASSAN IN
S.C. NO.9/2011 - CONVICTING THE APPELLANT U/S 302,
307, 504, 506 OF IPC AND ETC.,
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY K.SOMASHEKAR .J, DELIVERED THE
FOLLOWING;
JUDGMENT
This appeal is preferred against the Judgment of Conviction and order of sentence passed by the Court of Sessions Judge, Hassan in S.C. No.90/2011 dated 15.04.2016. On completion of sentencing policy on 22.04.2016, the Trial Court rendered conviction for the offences punishable under Sections 302, 307, 504, 506 of Indian Penal Code, 1860. Whereas this appeal is filed urging various grounds seeking to set aside the Judgment of Conviction and order of sentence and to acquit the accused for the offences which were leveled against him. 3
2. Heard the learned counsel Sri. I.S. Pramod Chandra for the appellant and learned SPP for State.
3. Perused the Judgment of Conviction and order of sentence rendered by the trial Court in S.C. No.90/2011 consisting the evidence of PW1 to PW19 and documents were marked at Ex.P1 to P21 inclusive of MO1 to MO3.
4. Factual matrix of this appeal is as under:
It transpires in the case of the prosecution that Ramachandra, who is the complainant, being the father of the deceased Purushotham Kumar had lodged a complaint as per Ex.P1 and set the criminal law into motion, thereby FIR as per Ex.P11 and P12 came to be registered on 09.10.2010 as the accused was missing from his house.
CW17 - Smt. Rangamma, being the mother of the accused requested her brother PW1 - Ramachandra to file missing complaint on 09.10.2010 that her son Swamy Gowda is missing from her village from 7.00 p.m. on 09.10.2010. In this connection on 10.10.2010 the informant ie., CW17 and PW1 went to the police station and gave a missing 4 complaint. On 11.10.2010, CW17 informed PW1 that her missing son Swamy Gowda, had returned to her house and requested him to report the said fact to the police.
5. After getting said information from CW17, PW1 Ramachandra went in the company of his son namely Purushotham Kumar to the house of accused and took the accused in their two wheeler vehicle to report it to police station. On the way, near Eshwara Temple on the tank bunk road of Gopanahalli, the accused asked PW1- Ramachandra to stop his two wheeler vehicle for attending nature call. When the moped was stopped by the road side, the accused who took a sickle which was hidden on his back started saying that they had lodged a complaint and they were harassing him unnecessarily, he would not spare them and so saying that the accused wielding the sickle, abusing in filthy language to PW1-Ramachandra and assaulted his son Purushotham Kumar, who was cause for lodging the complaint. Subsequently, he threw the sickle at the spot and went away from there.
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6. It is further alleged that the deceased Purushotham Kumar had sustained severe injuries over his neck, head, hands, cheeks. Fellow villagers by seeing the said incident arrived at the scene of crime and then took the injured Purushotham Kumar to the General Hospital at Hassan. From there on the advice of the Doctor the injured was shifted to Vikram Jeev Hospital at Mysuru to provide better treatment to him to save his life. However, based on the above complaint filed by the complainant ie., PW1- Ramachandra registered the case in Crime No.133/2010 initially for the offences punishable under Sections 504, 307, 506 of Indian Penal Code, 1860. Whereas the injured Purushotham Kumar, while being shifted Vikram Jeev Hospital, Mysuru in order to provide better treatment to him, his condition had deteriorated and therefore on 13.01.2011 the injured - Purushotham Kumar was discharged from the Hospital and whereby the injured was taken to his home, but after shifting from Vikram Jeev Hospital, the injured Purushotham Kumar had lost his 6 breath on 16.01.2011. Subsequent to the death of Purushotham Kumar, the offence punishable under Section 302 of IPC has been invoked.
7. The case was initially lodged for the offences punishable under Sections 504, 307, 326, 506 of Indian Panel Code, 1860 and the chargesheet was filed. Subsequent to the death of deceased Purushotham Kumar, the Investigating officer had taken the case further and whereby the dead body of Purushotham Kumar was sent to the post-mortem, whereby the doctor has conducted the post mortem of dead body and issued the post-mortem report and consequently, offences punishable under Sections 302, 307, 504 and 506 has been lugged against the accused person.
8. After filing of additional chargesheet committal Court registered the case in C.C. No.20/2011, after compliance of Sec. 207 of Cr.P.C. committed the case to Court of Sessions for trial. The Principal District and Sessions Judge on receipt of committal records registered 7 the case in S.C. No.90/2011 and made over to Addl. District and Sessions Court for trial. The case was later reassigned to Fast Tract Court-II, Hassan and thereafter to II Addl. District and Sessions Court at Hassan. Before the Sessions Court the accused was represented by his counsel. The Sessions Court after hearing the arguments of learned Public Prosecutor and defence counsel framed the charge for the offence punishable under Section 302, 307, 504 and 506 of IPC. The accused has pleaded not guilty of the charges, but claims to be tried.
9. Subsequently, the prosecution lead the evidence by examining PW1 to PW19 and marked at Ex.P1 to P21 and material objects as MO1 to MO3. Subsequent to closure of the evidence on the part of prosecution whereby incriminating circumstances were explained and the statement as contemplated under Section 313 of Cr.P.C has been recorded. The accused has declined incriminating evidence against him, accordingly recorded. 8
10. Subsequently, the accused was called upon to enter into defence evidence as contemplated under Section 233 of Cr.P.C, but the accused did not come forward to adduce any defence evidence.
11. Thereafter, the trial Court heard the arguments of the learned PP and the defence counsel for accused. Whereby the trial Court was appreciating the evidence of PW1-Ramachandra, who is the father of deceased - Purushotham Kumar and complaint as per Ex.P1, PW5 - Raghavendra and PW6 - Sharath Kumar, who are panch witnesses in respect of Ex.P4 - Inquest of dead body of Purushotham Kumar and so also Ex.P2 - Spot mahazar and Ex.P3 - Seizure mahazar, which held by the Investigating officer in the presence of panch witnesses even by securing PW8 - Eshwar, PW7 - Nanjegowda who is panch witness to the scene of panchnama and also seziure panchnama which shown at Ex.P2 and P3, PW12 - Dr. Prasanna Kumar S. Monoli, being doctor who conducted the post-mortem of dead body and issued post-mortem 9 report as per Ex.P6. PW13 - Dr. Masood Ahamed, being the doctor who treated the injured Purushotham Kumar at Vikram Jeev Hospital, Mysuru and the wound certificate as per Ex.P13, PW16 - Sri. Jayanna being the police constable, who carried all FIR at Ex.P11 and P12. PW17 - PSI, Sri. Devendra S.M, who registered the crime by filing FIR. PW18 - Sri. B.R. Venugopal, being an Investigating officer, who completed the investigation and laid the chargesheet against the accused. During investigation, the Investigating officer had conducted the spot mahazar at Ex.P2, seizure mahazar at Ex.P3 and so also post mortem held by the doctor on the dead body of Purushotham Kumar as per Ex.P6. These are all the evidence appreciated by the trial Court and rendered conviction for the offences punishable under Sections 302, 307, 506, 504 of Indian Penal Code, 1860.
12. Whereas the learned counsel Sri. I.S. Pramod Chandra, appearing for the appellant has taken us through the evidence of PW1 - Ramachandra being the eye witness 10 to the incident. Wherein he has stated in his evidence that on 11.10.2012 at around 12 noon hours, when the deceased Purushotham Kumar and also accused Swamy Gowda and himself were proceeding on the way to the police station, the accused is alleged to have attacked the deceased Purushotham Kumar with a means of a sickle, who eventually led to sustain some injuries. Infact in the PM report at Ex.P6 and also MLC Registers at Ex.P7 and P8 and so also report at Ex.P9, the MO1 - chopper has been used by the accused in order to assault deceased Purushotham Kumar.
13. But this evidence has been challenged as contrary to the evidence of one Manjegowda, who has been examined as PW2. However, PW2 deposed that at about 10.00 a.m the accused was seen holding the deceased Purushotham Kumar, when he asked he told that PW1 and his mother are harassing and insulting him by filing police complaint. At that time Yogesha, Nagesha, Dubbanna, Ajjegowda and Nanjeshgowda came to spot. 11 When they made attempt to rescue the deceased, the accused attacked the deceased Purushotham Kumar on his head by means of chopper. The accused had further attacked the deceased for 3 or 4 times and then accused jumped into the lake nearby and escaped from the scene of crime. But PW3 - Yogesh, who has been examined has stated in his evidence that at around 4.00 p.m he saw PW1
- Ramachandra's moped on the lake bed, there he also saw the accused Swamy Gowda holding the deceased Purushotham Kumar and when he approached the spot to rescue the deceased from the culprit, he threatened that if any of the bystanders attempted to come near him he would cut the throat of the deceased Purushotham Kumar. When they resiled, accused is said to have assaulted on the part of his head upon which the deceased Purushotham Kumar sustained some bleeding injuries.
14. It is argued that the evidence of PW1 -
Ramachandra and so also evidence of PW2 - Manjegowda, 12 PW3 - Yogesh and PW4 - Ajjegowda, and the complaint at Ex.P1 are found contradictory to each other.
15. PW5 - Ragavendra and PW6 - Sharath Kumar being panch witnesses have been examined on the part of the prosecution. On 17.01.2011 the police visited the house of PW1 and conducted panchanama on the body of the deceased Purushotham Kumar and also noticed some injuries on the head, neck, face and arms, stitches on the wounds and they have accordingly attested the inquest panchanama. But PW8-Eshwar being neigbhour of the deceased Purushotham Kumar also has been examined relating to the seizure mahazar that is on 12.10.2010 between 9.30 to 10.30 a.m, when he was in the scene of crime, MO1 - chopper was produced by PW1-Ramachandra to the Investigating agency, thereby alleging that MO1 chopper has been used by the accused in order to assault over the deceased Purushotham Kumar and also marks of the dried blood on the MO.1. Police have conducted seizure mahazar, thereby he has subscribed his signature to the 13 mahazar and also conducted another mahazar on 13.10.2010 near Dudda Police Station and attested Ex.P3 regarding seizure of MO2 and MO3 cloths of deceased.
16. PW12 - Dr. Prasanna Kumar S. Monoli is the Doctor who has conducted the post-mortem and issued post-mortem report as per Ex.P6. PW13 - Dr. Mansoor Ahmed, working as Neuro Surgeon, Vikram Hospital at Mysuru, who treated the deceased Purushotham Kumar stated that he was completely unconscious at the time of admission in the Vikram Hospital. But, initially deceased was not responding to the treatment. On 14.11.2010 the deceased Purushotham Kumar's condition was deteriorated and slipped into the coma. Later the injured Purushotham Kumar was discharged from the hospital on 13.01.2011 as he was not responding to the treatment provided by the doctor. Thus, prosecution lead evidence about the health condition of Purushotham Kumar was deteriorated as he was not responding to the treatment provided by the doctor to him in order to save his life.
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17. PW18 - Mr. B.R. Venugopal, being the Investigating officer has stated that he has drawn the inquest mahazar in the presence of PW7 and also PW8. But no incriminating evidence forthcoming from all the aforesaid witnesses to prove the guilt of the accused. The evidence discloses that the deceased Purushotham Kumar died on account of shock and hemorrhage due to the injury caused on the head. But the evidence relied on the part of prosecution against the accused is not sufficient to hold him guilty of the offence under Section 302 of Indian Penal Code, 1860 even if said evidence is accepted that accused assaulted with means of MO1 - chopper and caused injuries.
18. Lastly the learned counsel submits by referring the evidence of PW1 / Ramachandra, that the accused was suffering from mental disorder has caused some injury. But there is no evidence to support it.
19. The learned counsel for the appellant on these premises is seeking for acquittal of the accused by setting 15 aside the conviction rendered by the trial Court and also requests for re-appreciation of evidence. The learned counsel seeks that the benefit of doubt be extended to the accused relating to the offences leveled against him.
20. On the other hand, learned Addl. SPP for State, referring to the evidence of PW1 - Ramachandra, PW6 - Sharath Kumar and PW2 - Manjegowda equally corroborated inclusive of PW3 - Yogesh and also the evidence of PW4 - Ajjegowda submitted that medical evidence through PW12 stand in support of ocular evidence
21. These are all the evidence forthcoming on prosecution and thus evidence have been appreciated by the trial Court rightly, the prosecution has proved the guilt against the accused beyond all reasonable doubt for the offence punishable under Sections 302, 307, 504, 506 of Indian Penal Code, 1860. Therefore in this appeal, there are no grounds to seek interference, however the accused assaulted the deceased Purushotham Kumar immensely by 16 means of MO1 - chopper and caused injuries over limb resulted the injury, he has lost his breath as per opinion expressed by the doctor.
22. The learned Additional SPP for State, seeks for dismissal of the appeal as being devoid of merits.
23. It is in this context of the contentions made by the learned counsel for the appellant by referring the evidence of PW1, PW2, PW3 and PW4 and they are the material witnesses on the part of the prosecution, but it is relevant to refer Section to 299 of Indian Penal Code, 1860 relating to culpable homicide, which reads thus:
Explanation 1.-A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.- Where death is caused by bodily injured, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.17
24. It is relevant to refer the distinction between culpable homicide and murder- 'culpable homicide' is the genus and 'murder' is its species and all 'murders' are 'culpable homicides', but all 'culpable homicides' are not 'murders', it was held in the Judgment rendered by the Hon'ble Supreme Court, in Rampal Singh v. State of Uttar Pradesh reported in (2012) para-8 SCC 289.
Whereas Explanation 1 of Section 300 of Indian Penal Code, 1860 reads thus:
Explanation 1.- When culpable homicide is not murder - culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
25. The establishment of the involvement of the accused specifically in the incident wherein bystanders had tried to rescue the deceased -Purushotham Kumar from the clutches of the accused, even though the said circumstance is sufficient to convict the accused under Section 300 of Indian Penal Code, the prosecution is 18 required to establish the guilt against the accused beyond reasonable doubt by facilitating cogent, positive and acceptable evidence. It was contended that the accused did not intend to cause the murder of the deceased and this contention has been taken by the learned counsel for seeking intervention of conviction having regard to the scope of section 299 of IPC and so also having regard to Section 300 of Indian Penal Code, 1860.
The difference between the second clause of Section 299 and clause 'thirdly' of Section 300 to one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest medium, or lowest degree. The word likely in second clause of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words 'bodily injury... sufficient in the ordinary course of nature to cause death', in clause thirdly of Section 300, mean that death will be the most probable result of 19 the injury having regard to the ordinary course of nature;
26. But it is the contention that the prosecution has not proved guilt of the accused by facilitating worth while and also acceptable evidence. Culpable homicide will not amount to murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, provided the offender has not taken undue advantage or acted in a cruel or unusual manner.
27. In the instant case ie., PW1 - Ramachandra who is none other than maternal uncle ie., accused - Swamy Gowda, PW17 who is the mother of this Swamy Gowda, but that accused Swamy Gowda was missing from his house. Therefore, PW7 that is this mother who stood as witness in the chargesheet is the brother of Ramachandra with regard to missing him from the house, and subsequently when again deceased Purushotham Kumar and also PW1 - Ramachandra had been to the house of 20 CW1, who is none other that the brother of Ramachandra and such other paternal aunt of that Purushotham Kumar where in the accused - Swamy Gowda had returned to the house, but informed by CW17 that her son who had returned to the house that PW1 - Ramachandra and his son had been to her house and from there they have taken that Swamy Gowda in a moped vehicle to the nearby area, where this person's uncle i.e., Ramachandra on his moped vehicle stopped the vehicle in regard to attend nature call. When he stopped the moped vehicle and while he was arriving along with his son Purushotham Kumar that the accused attacked Purushotham Kumar, which was concealed on his backside from chopper and assaulted, as a result, he had sustained some injuries.
28. In the meanwhile PW2, PW3 and PW4, who saw the accused holding the deceased Purushotham Kumar, they approached the accused with an intention to rescue from his clutches. But this accused was extending some intimidation to take away their life and so also 21 extending to take away the life of the injured Purushotham Kumar saying so that he was assaulted as that PW1 Ramachandra and his son are causing to let out their response. Using the mother ie., CW17 taking the witness had lodged a complaint and they were harassing him unnecessarily and saying so that and also expressed that he would not spare them and so saying that the accused had misused the sickle by abusing in filthy language to his matrimonial uncle PW1-Ramachandra and assaulted his son Purushotham Kumar for lodging the complaint, the accused pulled out a machchu hidden concealed at his back of his cloth and started assaulting him by means of MO1 - chopper with his son he has sustained injury as per PM report Ex.P6. But the deceased - Purushotham Kumar was initially taken to a Government Hospital, Hassan to provide treatment and from there he had been shifted to Vikram Hospital and discharged from the Hospital on 13.01.2011. Purushotham Kumar was taken back to his house and has lost his breath on 16.01.2011 at around 4.10 p.m. 22
29. But initially the crime came to be registered for the offences punishable under sections 504, 506 and 307 of Indian Penal Code, 1860 and later on the death of deceased Purushotham Kumar on the report made by PW1
- Ramachandra, Section 302 of Indian Penal Code has been invoked. Accordingly, Investigating officer has taken the case for further investigation, and leveled charges against the accused for offences punishable under Sections 504, 307, 506 and 302 of Indian Penal Code, 1860. Whereas keeping in view of the evidence of PW1 - Ramachandra and also the evidence PW2, PW3, PW4 inclusive of PW18 being the Investigating officer, but it is relevant to refer to culpable homicide under Section 299 of Indian Penal Code, 1860. But this Section defines culpable homicide which is of 2 kinds:
a) Culpable homicide amounting to murder
b) Culpable homicide not amounting to murder.
30. Having regard to the nature of the offences and the role of the accused and so also specifically 23 considering the evidence of PW1 - Ramachandra, who is the uncle of complainant and who is none other than the matrimonial uncle of the accused - Swamy Gowda, and on going through the evidence of all material witnesses namely PW2, PW3, PW4, it is relevant to refer to Section 300 of Indian Penal Code, 1860 relating to murder. But there is no definition of murder in the particular section, unless there are some ingredients to constitute the offences.
31. Motive cannot be assumed by the prosecution to establish motive fact against the accused in all cases, but at the same it cannot be gainsaid that it was adequate motive but the motive, behind the crime is relevant fact of which the evidence can be given. It is only on the part of the prosecution to prove the guilt against accused by facilitating worth while evidence. But the absence of the motive is also a circumstance which is relevant for assuming that the circumstances do not prove the guilt of accused. Further as regards the same, medical evidence is 24 also to be proved by the prosecution that it is only because of the injuries inflicted upon the person of the deceased by the accused, has led to his death.
32. But, in the instant case Purushotham Kumar, had died after 3 months 5 days of the incident and which was after 3 days after he was discharged from Vikram Hospital, even though provided better treatment to save his life. The same has been seen in the evidence of PW1. PW18 being an Investigating officer, who took up the case further investigation after the death of deceased Purushotham Kumar, and held post mortem as per Ex.P6, PW7 - Doctor who has conducted post mortem over the dead body. The concept of even ocular evidence and even the scope of circumstantial evidence, but, in the instance case it is referred to these two concepts of the evidence in the arrival of the proper conclusion. Whereas, in the case of circumstantial evidence, as in the present case on hand which circumstances would arise to lose of breath of deceased Purushotham Kumar, who had sustained some 25 injuries, which inflicted over the person as indicated PM report as per Ex.P6 issued by PW6 and PW12 being the Doctor, who conducted investigation over the dead body.
33. In the instant case, where a case of circumstantial evidence, the motive factors are alleging important that the motive always locks upon in the mind of the accused and in some times, but having pivotal role to discuss of offence having significant, but even in the instance case, and even the motive factor having, but the accused Swamy Gowda, who is none other than the deceased son of PW1 - Ramachandra, but Ramachandra's son Purushotham Kumar, after three months 5 days thereafter investigation has been carried with relation to MO1- chopper.
34. The learned counsel has taken a contention and also addressed his arguments relating to the role of the accused and also suffering from mental disorder. That is the role forthcoming, but no evidence has been given on the parts of the prosecution. But even on the contention of 26 the proceedings more so re-appreciated of the evidence even prefixing from the Judgment of conviction and order of sentence. But in the instance case on the date that the accused was assaulted with MO1 - chopper on his back, he float on the earth and took out the MO1 - chopper in the scene of crime and assaulted deceased Purushotham Kumar with means of MO1 chopper mercilessly. Whether he was having on motive to immensely and he would try to the incidental causing death. Definitely the motive facts, it would be from the state on the mind of the accused - Swamy Gowda, but he was assaulted mercilessly with means of MO1 chopper and he hesitantly causing of injuries over the person of the deceased - Purushotham Gowda as indicated in PM report at Ex.P6 issued by PW5 - Doctor.
35. Therefore the circumstantial evidence in this case is the failure of proof of the motivation of an offence that dignities in small non-existence, but what is happened in the place is specific to one of the important 27 consideration of proper conclusion that to secure the conclusion that relating to the offences punishable under Section 302 of IPC as well as other relevant offences whereby the charges levelled against him. But the last from which it is the whole circumstantial evidence well settled with the case, where it is the case rest upon the circumstances raises secondly as such stage while existence.
1) The circumstances from which a information sought to be drawn from the cogently and construedly establish.
(2) The establishment should have been taken definitely intensive passing through cunning witness also the circumstances taken preservatively the forms taken who over the chief conclusion that there is no establish from the conclusion that in all given evidence the crime was committed by the accused and each circumstantial evidence in order to sustain must be complete and incapable of explanation of any hyposis than that of the guilt of accused satisfactory evidence should not be that the consistent.28
36. The recovery of the material objections that is MO1 - chopper even raptly alleging that the accused at the time of committing an offence and also in case of injury where the person injured and over the body of the deceased ie., in absence of specific the accused that in the offence of saying defence on the parts of the prosecution conducting with him for the existence both involving over person in the absence of the material of pass the guilt of the accused to which circumstances which has been established on the basis of the relevant evidence the credibility which has not been medical humble by the grievance and evidence got started from the medical evidence relating to death. Both accord on the ground of some minor injury involved injury by the major over the presence of the incident even which was involved in other culpable in between the deceased and the accused that had listening and is no doubt that the accused was only committed the crime and revokes no doubt that the accused has committed injuries over the person deceased 29
- Purushotham Kumar, but the evidence of eye witness is disbelieved, same has been seen in the evidence.
37. Thereby in respect of the evidence of PW2 to PW4 being the eye witnesses examination on the prosecution and even though it is found that chopper MO1 recovered by the investigating officer in the presence of panch witnesses has been secured and even that MO1 - chopper that stood their circumstantial evidence even to indicate crime, it does not possible for which on wholey one relating and it is anything on the part of the prosecution that the evidence delays cluches and its clear implication of the accused person and case over to the injury but on the eye witness account of connectivity that the medical evidence, the eye witness contention have given with each other with regard to the person having caused delay over the person of the deceased that means of MO1 chopper on the organ. But it was held that this vide prescribed as it cannot be proved that should not be proved by the prosecution against accused and even by 30 seeking re-appreciation of the evidence and Judgment of conviction rendered by the trial Court. The Doctor - PW12 subject to death has issued PM report, Ex.P6 and injury is resulted to deceased - Purushotham Kumar, that the evidence against that and it must be cogent and also positive and probably against are executing death of deceased - Purushotham Kumar in the instance case, but there are inconsistency and discrepancies found.
38. In connection of facts and circumstances of the case, it is relevant to refer the reliance of Babu v. State of Kerala reported in (2010) 9 SCC 189 whereas in so far circumstantial evidence, generally for the burden of proof in a case and circumstantial evidence, burden presumption is always credible, in criminal case relating to the proof of burden and owner proof, reversal of burden of proof when permissible, prosecution in so for as the presumption is as per Article 21 to 14 constitution of India, where in relying on Supreme Court Judgment held that, every accused to be presumed to be innocent unless the 31 guilt is proved. The presumption of innocency is human right. However, subject to the stated explanation, the said principle based upon criminal jurisprudence, for this purpose the nature of the offence it is a serious and gravity, there on have been taken into consideration the Court must be on governed to see that merely application of the presumed the same cannot be led to know the insufficient or mistakes conviction. However, as such presumption can be raised only when certainly facts and circumstantial evidence facts are established by the prosecution.
39. In this regard, it is relevant to refer to the reliance of Sharad Birdhichand Sarda v. State of Maharashtra, reported in 1984 p. SCC 116.
40. In this Judgment the Hon'ble Supreme Court has been addressed the scope of the Court and issuance of circumstantial evidence (1) Thus having of about grounds to address these two issues.
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In this reliance para-159, 163 and 166 reads as under:
Para-159: It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential contentions must be satisfied;
(1) Various links in the chain of evidence led by the prosecution have been satisfactorily proved. (2) The said circumstance points to the guilt of the accused with reasonable definiteness, and (3) The circumstance is in proximity to the time and situation.
Para-163: We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is 33 undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, this Court made the following observations: [SCC para 25, p.820: SCC (Cri) p. 1060] Another golden thread which runs through the web of the administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.
Para-166: In the instant case, while two ingredients have been proved but two have not. In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the poison in his possession. On the other hand, as indicated above, there is clear evidence of PW2 that potassium cyanide could have been available to Manju from the 34 plastic factory of her mother, but there is no evidence to show that the accused could have procured potassium cyanide from any available source. We might here extract a most unintelligible and extraordinary finding of the High Court-
It is true that there is no direct evidence on these two points, because the prosecution is not able to lead evidence that the accused had secured potassium cyanide poison from a particular source. Similarly there is no direct evidence to prove that he had administered poison to Manju. However, it is not necessary to prove each and every fact by a direct evidence. Circumstantial evidence can be a basis for proving this fact.
41. This citations has been referred by the circumstantial evidence, even in a given facts and circumstances of the case, relying to some injury as the person, deceased - Purushotham Kumar, who is relative of the deceased... and he has assaulted on his back by means of MO1 - chopper. He had sustained injury on his 35 vital organ, which indicated in Ex.P6, Post-mortem report issued by PW12, being the doctor who conducted post- mortem over the dead body.
42. Whereas in the instant case, it is stated that the accused had caused death of the deceased by inflicting injuries on the said person. But the deceased lost his breath after 3 months 5 days of the incident, after he was discharged from Vikram Hospital at Mysuru on 13.01.2011. He died on 16.01.2011, which is within a period of 3 days. But lost his breath as a result of the injuries inflicted over the person of deceased - Purushotham Kumar with means of MO1 - chopper which was used by the accused, as on that day.
43. But it is relevant to refer to Section 304 of IPC, 1860. In Section 304 first part is as under, "whoever commits culpable homicides not amounting to murder shall be punishablewith [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if 36 the act by which death is caused is done with the intension of causing death, or of causing such bodily injuries as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
44. If the act is well done within the knowledge, that it is likely to cause death, but without any intention to cause death or to cause bodily injury which is likely to cause death. But on close reading of this provision under Section 304 of IPC in respect of I-part and II-part, it is the I-part, which is deadly, if the act by which is caused his death without intension of causing death. But in the II- part, without any intension to cause, if the act is done with the knowledge that this likley to cause death that without any intension to causing death.
37
45. In sofar as Section 304 of IPC, 1860 part-II and even on a close scrutiny of provision of this act before and accused is held guilty and punishable under Part-I & II of Section 304 of IPC, it is to be noticed that death has been caused by the assigner due to any circumstances attracting Section 304 of IPC, 1860. The scope of Section 304 of IPC under I-part of that provision relating to the inflicting both injury by the accused on the deceased and as such injuries which were likely to cause death.
46. Therefore in the instant case the deceased - Purushotham Kumar who is none other than the son of PW1 - Ramachandra. However, his presence should infliction of injuries as Ex.P6, Post-mortem report, that where the accused are involved. But evidence has not been facilitated by the prosecution to prove that accused had inflicted injuries over that person. In spite of the same, the trial Court rendered conviction Judgment relating to an offences under Section 302, 504, 307, 506 of IPC, 1860. Under Section 307 of IPC, 1860, the accused 38 was sentenced to undergo RI for a period of 10 years and to pay a fine of Rs.50,000/- with default clause.
47. In the instant case, accused has been convicted by the Trial Court relating to the offences punishable under Sections 302, 504, 307, 506 of IPC, 1860. Even under Section 307 of IPC, 1860 the accused shall undergo imprisonment for a period of 10 years and sentence to pay fine of Rs.50,000/- in default clause. The accused shall undergo imprisonment for a period of one year and sentence to pay fine of Rs.1,000/- in respect of offence under Section 504 of IPC in default clause. The accused shall undergo imprisonment for a period of 7 years and sentence to pay fine of Rs.20,000/- in respect of offence under Section 506 of IPC along with default clause.
48. The accused was sentenced to undergo imprisonment for life for the offence under Section 302 of IPC, 1860, but was not sentence to pay fine, even though 39 imposing fine under Section 302 of IPC, 1860, is mandatory.
49. However, in a given facts and circumstances of the case and even re-appreciation of the evidence and revisiting the Judgment of conviction as well as scope of Section 299, 300 IPC, 1860 and so also Section 304 relating to the I and II part, are concerned, it is relevant to refer to the judgment in Kallu vs. State of Madhya Pradesh reported in 1992 Crl.J 2380.
50. But Section 134 of Evidence Act, 1872, it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to arrive at a conviction. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of single witness, the Court may classify the oral testimony of single witness, the Court may classify the oral testimony into 3 categories:
(i) wholly reliable 40
(ii) wholly unreliable and
(iii) neither wholly reliable nor wholly unreliable.
In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness.
When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused. 41
51. But in the instance case, PW1- Ramachandra at Ex.P1 and his son Purushotham Kumar, who has sustained injuries in his back leg and that injury caused by the accused, who is none other than deceased relative namely Swamy Gowda, who is the accused and he was alleged to be assaulted by means of MO1 - chopper. Even both father and son alleged to be present at the scene of crime, who alleged to have assaulted with means of MO1- chopper, which is evident at PM report/ Ex.P6. The deceased Purushotham, who is alleged to have died after lapse of 3 months 5 days. Therefore, in respect of offence under Section 302 of IPC, whereby he is in incarceration for 8 years 11 months and 13 days after being convicted by the Trial Court. Hence the accused deserves conviction for the offence punishable under Section 304 Part I of IPC 1860 instead of Section 302 of IPC. Similarly, as regards the offence under Section 307, no evidence has been adduced on the part of the prosecution to prove the guilt of the accused beyond all reasonable doubt. Therefore, the 42 accused deserves for acquittal of offence punishable under Section 307 IPC, 1860.
52. Similarly, the accused has been convicted for offence under Section 506 of IPC and sentenced to undergo RI for a period of seven years and also to pay a fine of 20,000/-, with default clause. But we find that there is no evidence to prove the offences under Sections 504, 307 and 506 of IPC. Consequently the accused deserves to be acquitted for offences under Sections 504, 307, 506 of IPC, 1860, but is required to be convicted for offence punishable under Section 304 Part I of IPC, instead of Section 302 of IPC.
The Trial Court had arrived at a conclusion as regards offences under Sections 504, 307, 506 of the IPC and so also for major offences under Section 302 of the IPC of committing the murder of the deceased. Whereas the prosecution has facilitated certain evidence who are the witnesses stated supra. Even at a cursory glance of the evidence of those witnesses who are material 43 witnesses, but in order to establish the ingredients of the offences under Sections 504, 307, 506 or 302 of the IPC, no worthwhile evidence has been facilitated by the prosecution to arrive at a conclusion that the accused deserves to be convicted for the aforesaid offences under the IPC. At a cursory glance of the evidence relating to the complaint and so also the evidence of PW-1 / Ramachandra who is the father of the deceased, but they are relatives of the deceased. Hence, it cannot be said to be reliable evidence. Having gone through the entire evidence of the prosecution and in the totality of the facts and circumstances relating to the involvement of the accused wherein the accused was suffering from mental disorder, we are of the opinion that conviction held against the accused under Sections 307, 504 and 506 of the IPC deserves to be set aside. But maintain conviction under Section 304 Part I of the IPC instead of Section 302 of the IPC. Accordingly the same deserves to be modified. Hence, instead of Section 302 of the IPC, accused deserves to be convicted for offences under Section 304 Part I of the 44 IPC, 1860. In view of the aforesaid reasons and findings, we proceed to pass the following:
ORDER The appeal preferred by the appellant/ accused namely - Swamy Gowda S/o Rame Gowda under section 374(2) of Cr.P.C in Crl.A. No.1053/2017 is allowed in part.
Consequently, the Judgment of conviction dated 15.04.2016 and order of sentence dated 22.04.2016 rendered by the trial Court in S.C. No.90/2011 is hereby modified convicting the accused for the offence punishable under Section 304 Part-I of IPC instead of offence under Section 302 of IPC. The accused is sentenced to pay a fine amount of Rs.10,000/-, and in default, to pay fine amount, he shall undergo further simple imprisonment for a period of three months.
Appellant/ Accused is in incarceration soon after being held conviction by the trial Court for almost all 8 years 11 months 13 days. The period of incarceration shall be termed as service of sentence for the offence under 45 Section 304 Part-I of IPC. Therefore, Registry of this Court is directed to forward a copy of the operative portion of the Judgment to the Superintendent of jail authority, Central Prison, Mysuru where appellant/ accused is housed, with a direction to set him at liberty forthwith, if he is not required in any other case. Ordered accordingly.
The accused/ appellant is acquitted for the offences punishable under Sections 504, 506 and 307 of IPC, 1860 for which he was charged.
Sd/-
JUDGE Sd/-
JUDGE LL