Karnataka High Court
P Manjunatha @ Manja vs The State Of Karnataka on 21 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 1500
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21st DAY OF APRIL, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.236/2013
BETWEEN:
P. Manjunatha @ Manju
S/o Puttachikkegowda
Aged about 32 years
Occu: Driver
R/o Bindiganavile Village
Nagamangala Taluk
Mandya Distrct.
... Appellant
(By Sri S.H. Kazi, Advocate for
Sri R. Kothwal, Advocate)
AND:
The State of Karnataka
by Tilak Park Police Station
Represented by State Public Prosecutor
High Court Building
Bangalore-560 001.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section
374(2) of the Cr.P.C praying to set aside the judgment
and order of Conviction and sentence dated
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30.12.2011 passed by the Presiding Officer, Fast
Track Court-I, Tumkur in S.C.No.50/2011,
convicting the appellant/accused for the offences
punishable under Sections 302 and 324 of Indian
Penal Code.
This Criminal Appeal coming on for hearing this
day, B.A.PATIL J. delivered the following:-
JUDGMENT
The present appeal has been preferred by the appellant-accused being aggrieved by the judgment and order of conviction and sentence passed by Fast Track Court-I, Tumkur, in SC No.50/2011 dated 30.12.2011.
2. The brief facts of the case of the prosecution as per the complaint are that the complainant and accused were working in Kalyana Bhavana hotel. On 15.7.2010 the accused, deceased Harish and complainant Ranganatha were sleeping. At about 11.30 p.m. accused tried to have an unnatural sex (sodomy) with deceased Harish. As the deceased Harish refused and not allowed the accused to have unnatural sex, accused being enraged took a knife -3- which is used in the hotel to cut the vegetables and assaulted on Harish over his neck, chest, face and on other parts of the body. As a result of the same, he sustained injuries and died on the spot. When Ranganatha complainant asked the accused as to why he has assaulted Harish, for having asked the same, accused assaulted Ranganatha with the knife on his neck, chest, head and caused bleading injuries. He also threatened him by saying that he should not disclose the said fact to any other person. If he disclose the same, he will held guilty and he also warned him. The said Ranganatha PW14 told the accused that he will not disclose the said fact to anybody and as he is having wife and children, asked him to leave him. Accused removed the blood stained clothes worn by him, washed his hands and face, changed his dress and went out side the hotel and while going out he locked the door from outside.
3. It is further case of the prosecution that because of the injuries PW14 Ranganatha made a -4- hue and cry and by hearing the same police who was present there on night patrolling duty, came to the said Kalyana Bhavana and they break open the lock and opened the door and there they found the dead body of Harish and PW14 has sustained bleading injuries and he also asked for help. Immediately, he telephoned the said fact to PW18 PSI of Tilak Nagar police station. As per the direction of PW18, PW14 was shifted to the hospital and there the statement of PW14 was recorded as per Ex.P11 and a case was registered in Crime No.79/2010 under Sections 302 and 307 of IPC. After investigation, the charge sheet was laid as against the accused. After committal of the case, after hearing the learned counsel for the accused and the learned Public Prosecutor about the charge, the charge was framed, accused pleaded not guilty and he claimed to be tried. As such, the trial was fixed.
4. In order to prove the case of the prosecution, the prosecution got examined PWs.1 to 20 and also -5- got marked Exs.P1 to P28 and MOs.1 to 6. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating material as against the accused. The accused denied the incriminating material, but he has not led any defence evidence, but however he got marked Exs.D1 to D3 in the cross examination of the witness. After hearing the parties to the lis, the trial Court convicted the accused for the offence under Sections 302, 324 of IPC by punishing the accused to sentence to undergo imprisonment for life and to pay a fine of Rs.10,000/- for the offence under Section 302 and imprisonment for six months and to pay a fine of Rs.1,000/- for the offence under Section 324 of IPC. Being aggrieved of the same, the appellant- accused is before this Court.
5. Apart from the grounds which have been urged by the appellant in the grounds of appeal at ground Nos.1 to 17, the learned counsel has submitted that the trial Court only on presumption -6- and assumption has wrongly came to the conclusion that the accused has committed the alleged offence. He further contended that there are contradictions and variations in the complaint as well as the evidence of PW14. This fact has not been properly considered and appreciated by the trial Court. He further submitted that, the injured himself might have committed the alleged offence and only to escape from the said crime he has falsely implicated the accused. On these grounds he prayed for allowing the appeal by setting aside the impugned judgment and order of conviction and sentence.
6. Per contra, the learned State Public Prosecutor vehemently argued by contending that PW14 is an injured eyewitness, he has fully supported the case of the prosecution and there are no good grounds to discard his evidence. He further contended that PW15 is the owner of the hotel, he has also supported the case of the prosecution to the effect that the deceased, complainant and accused -7- were working in the said hotel and they were sleeping in the said hotel and at that time, the alleged incident has taken place. He further contended that on the basis of the voluntary statement of the accused knife has also been recovered as per Ex.P2 in the presence of PW3 and he has also fully supported the case of the prosecution. On these grounds, the trial Court after considering all the materials which have been placed on record to prove the guilt of the accused has rightly convicted the accused. There are no good grounds to interfere with the judgment and order of conviction and sentence has been passed by the trial Court and the same may be confirmed by dismissing the appeal.
7. We have gone through the evidence and the submissions made by the learned counsels appearing for both the parties.
8. It is the contention of the learned counsel for the appellant that only on presumption and assumption the trial Court has convicted the -8- accused. In order to prove the case of the prosecution, the prosecution has mainly relied upon the evidence of PWs.10, 14 and 15. PW15 is the owner of the hotel of Kalyana Bhavana, in his evidence he has deposed that PW14, accused and deceased Harish were working in the said hotel and on 15.7.2010 at about 9.00 p.m. after closure of the business and after payment of the wages to the workers he went to his house and inside the hotel PW14, deceased Harish and accused were sleeping and at about 12.00 or 12.30 p.m. police came to his house and informed that a murder has taken place in his hotel. Immediately, he came to the hotel and there he noticed that Harish has been murdered and when enquired the police and Ranganatha, they told that Ranganatha has been taken to the hospital and he went to the said hospital at Tumkur and he talked with PW14 Ranganatha and there he noticed that he has also suffered with bleeding injuries on his neck, chest, hands and other parts of the body and when he enquired with him, he informed that the accused -9- has murdered the deceased Harish and he has also caused the injuries to him. During the course of cross-examination nothing has been elicited to discard his evidence to show that the accused was not working in the said hotel belonging to him and he was not present at the place of incident as on the date of the alleged incident.
9. PW14 is a material witness. In his evidence he has deposed that he was also working in the hotel as a cleaner at Kalyana Bhavana and on 15.7.2010 in between 11.00 to 12.00 p.m. when they were sleeping in the Hall, at about 11.00 p.m. he heard the screaming voice of Harish and he woke up and noticed that the stains of the blood were also scattered on his body and when he saw at that time accused was assaulting the said Harish on his neck, chest and on private organs of Harish with knife and by the time he saw, the said Harish died due to the injuries. He has further deposed that after seeing the incident he made a screaming voice and at that time
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accused came towards him by holding the knife and assaulted him near his eyebrows, cheeks and neck and beneath the neck and other parts of the body. He told the accused that he is having wife, children and asked him to leave, in that context he pretended as if he has also died and thereafter accused took the dead body of deceased Harish by dragging near the door and after leaving the said body there he took the water jug and he washed his hands, legs and thereafter changed the dress which he was wearing and went out by locking the door from outside. He has further deposed that after the accused went out of the hotel after half an hour he stepped up on the table and through the window on the top of the door he made a hue and cry by saying 'murder', 'murder' and at that time police came and break open the lock and they saw the incident and took him to the District Hospital and there he has been treated. He further deposed that in the hospital his statement was recorded as per Ex.P11. During the course of cross examination nothing has been elicited so as to
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discard his evidence and the presence of the witness at the place of the incident.
10. PW10 is the Police Constable who came by hearing the screaming voice of PW14. In his evidence he has also deposed that on 15.7.2010 they were on night patrolling duty, at about 11.30 p.m. they came near the place of incident and after watching the same they had a cup of tea and they came near Lakkappa Circle and after checking the 'beat book', they were standing there. At that time, they heard the screaming voice and the PSI asked him to go and see what has happened. Immediately, they went near the Kalyana Bhavana which is at a distance of 50 feet away from the place where they are standing and there they heard the screaming voice asking for help. Then they break open the door of the said hotel and they found that the person who was making a screaming voice has suffered bleeding injuries and one person was lying dead and the said body was full of blood. Immediately, they called the PSI and as per
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his instruction the said PW14 was taken to District Hospital for the purpose of treatment and thereafter the PSI came to the place of incident and he took further investigation. During the course of cross examination of this witness, nothing has been elicited so as to discard his evidence and presence at the place of incident immediately after the incident is concerned and injury suffered in the hands of the accused.
11. By going through the evidence of PW14 who is considered to be a material witness in this case, he has categorically deposed all the overt acts of the accused assaulting the deceased as well as to himself. Testimony of injured witness has to be given a great weight Presence of such witness at that time and place of occurrence cannot be doubted. It is not likely that he would spare the real assailant and implicate an innocent person. The presence of PW14 is also very much justified for having suffered injuries at the hands of the accused. In order to discard his
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evidence there must be cogent and convincing evidence or grounds. If it is not disputed that the injured suffered injuries in the said incident and when once the prosecution prove that he suffered injuries in the said incident his evidence cannot be discarded, that too when medical evidence and evidence of PW.10 the owner of the hotel corroborates with the evidence of this witness. This proposition of law has been laid down in Sunil Kumar and others Vs. State of Madhya Pradesh, reported in 1997 CRL. L.J.1183(SC), wherein at paragraph 20 reads as under:
"20. While on this point we wish to mention however that the High Court erred in not treating the telephonic information that PW.3 gave to the police station as the FIR. It is not disputed that PW3 did give an information to the police station wherein he stated that one person had been killed and another person had been dismembered and it was recorded accordingly in the diary
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book (Ex.P/17). The same entry discloses, notwithstanding the absence of the names of the assailants therein, a cognizable
offence and indeed it is on the basis thereof that PW.6 initially started their investigation. Ext.P/17 will therefore be the FIR and the statement of Ramesh (Ext.P.2) which was recorded by him in course of the investigation is to be treated as one recorded under Section 161, Cr.P.C. This conclusion of ours, however, does not in any way affect the merits of the prosecution case for we find that immediately after PW1 was taken to the hospital his statement was recorded by a recorded (sic) as a dying declaration which, consequent upon his survival, is to be treated only as a statement recorded under Section 164, Cr.P.C. and can be used for corroboration or contradiction. This statement recorded by the Magistrate at the earliest available opportunity clearly
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discloses the substratum of the prosecution case including the names of the appellants as the assailants and there is not an iota of materials on record to show that this was the upshot of his tutoring. On the contrary, this statement was made at a point of time when PW.1 was in a critical condition and it is difficult to believe that he would falsely implicate the appellants leaving aside the real culprits. In view of the observation of the trial Court that his evidence was discrepant we carefully looked into the same and found that there was only some minor inconsequential contradictions which did not at all impail his evidence. Then again, as already noticed, the evidences of the doctors fully supports his version of the incident. Another related aspect of the matter is the lodging of the complaint by PW.1 and his brother before the Superintendent of Police (Ex.P.1) (which we have earlier referred to) wherein they sought for
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police action against the threat meted out by the appellants that they would cut them to pieces a threat which was brutally (and literally) translated into action."
In another decision of Hon'ble Apex Court in the case of Neelam Bahal and Another Vs. State of Uttarakhand reported in (2010) 2 SCC 229, it has been held at paragraphs 8 and 9 as under:
"8. We have considered the arguments advanced by the learned counsel for the parties. We find absolutely no reason to doubt the statements of PWs.2 and 4 with regard to the incident. PW.2 was an independent witness inasmuch that he had been employed with the complainant party as well as the accused party at various times. It also appears that he was the focus of the quarrel and the motive that had precipitated the incident, as both the parties were pushing for employing him which had led to
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the unpleasant situation between them. Likewise, we find it difficult to disbelieve the statement of PW3, the injured victim himself as he has given as graphic description as to what had happened.
9. It is true, as has been contended by Ms.Jaiswal, that there are some differences between the statements of these two witnesses but they re bound to occur with the evidence being recorded after about five years. It must also be borne in mind that a parrot-like deposition after a long lapse of time smacks of tutoring and some differences in fact advance the credibility of the witnesses."
12. In that light, if the entire evidence is scrutinized cautiously and carefully, the evidence which has been produced in respect of PW14 has reposes the confidence of this Court that it is the accused alone has committed the offence and caused
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injuries to PW14 and the motive is also established by this witness by saying that accused was intending to have unnatural sex with deceased Harish and he refused to co-operate with him. In that light, the accused being enraged by taking the knife which is available in the said hotel has assaulted and caused the injuries and death of the deceased Harish. In that light, the evidence which has been produced is just and proper and there are no good grounds to reject the evidence which has been produced in respect of PW14.
13. Even as could be seen from the evidence of PW10 and PW15 they are natural and probable witnesses. Even though the learned counsel for the appellant-accused submits that only on presumption and assumption and without looking to the contradiction the trial Court has convicted the accused, but we have gone through Ex.P11 and the statement of PW14 which has been recorded before the Court. There are no major contradictions or
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omissions or improvements so as to discard the evidence of PW14. It is well established principles of law that minor contradiction, omission will not take away the case of prosecution.
14. Even as could be seen from the records the prosecution in order to prove the fact that PW14 has suffered with injuries at the hands of accused it relied upon the evidence of PW14. In his evidence he has deposed that accused after assaulting deceased Harish he came and warned and assaulted with knife and caused injuries. Thereafter washing hands, legs and by changing the clothing went away from that place by locking the door from out side. Immediately there after hearing the screeming voice of PW14, PW10 Police Constable came and informed the same to PSI, break open the door and took injured PW14 to hospital. PW13 is the doctor who immediately show him, history also show the same and he has also mentioned the injuries sustained by PW14 and he has issued Wound Certificate as per Ex.P10. During
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the course of cross-examination though it is brought on record that such injuries may be caused if a person falls on sharp edged sheet but that is not going to help the case of the accused. Since injury No.2 is on the neck it will not be caused if a person falls on the sheet and other injuries. Be that as it may when there is direct ocular evidence of PW14 then under such circumstances the said evidence of PW13 will not shake the evidence of prosecution. It is well established principle of law that if there is contradiction between ocular evidence and doctor evidence ocular evidence prevails. In that light the evidence of PW14 repose confidence of this Court to show that there is acceptable evidence to prove the offence under Section 324 of IPC.
15. In that light, the submission made by the learned counsel for the appellant-accused is not acceptable and same is rejected.
16. Be that as it may, even the prosecution has clearly established the fact that the deceased,
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accused and the injured PW14 were working in the said hotel and at the instance of the accused knife which has been used for the purpose of commission of the offence has also been recovered in this behalf. The prosecution has also examined PW3 the recovery mahazar, punch. In his evidence he has deposed that after the inquest mahazar after three months, the police called him to Kalyana Bhavana hotel and at that time the accused was also present along with police and the accused told that he will produce the knife which has been used for commission of the offence. Thereafter, he went inside the hotel. He removed the knife which has been kept beneath the coconuts dry shells and produced before the police and the same was seized by drawing the mahazar as per Ex.P2. Even during the course of cross- examination the learned counsel tried to disturb the evidence of PW3, but he has not succeeded in that behalf. This evidence has also been supported by the evidence of PW18 and PW20.
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17. PW20 in his evidence has also deposed that he has recorded the voluntary statement of the accused as per Ex.P26. Thereafter, he has also secured the punch witnesses. Even we have carefully and cautiously gone through the Lower Court Records, therein the prosecution has produced the photographs at Exs.P12 to P24. They also clearly indicates the fact that the deceased has been brutal murder by multiple injuries. Even the injuries are visible over the body of the deceased in the photographs Ex.P18 to P20. They also indicates the fact that being enraged by the refusal of the deceased to have unnatural sex accused has committed murder brutally. Even as could be seen from Ex.P28 the FSL report as per the requisition of the Investigating Officer, five items were sent for chemical examination to FSL and all the five articles which have been sent by the stained with blood and the opinion indicates that the presence of blood detected in item Nos.1 to 5 and item Nos.1,2, 3, 4, 5 were stained with human blood. The accused has also not
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given any explanation as to how the human blood was found over the said articles which belongs to accused.
18. By going through the evidence which has been produced by the prosecution it clearly indicates that the deceased died a homicidal death and evidence of PWs.14, 15 and PW1 indicates that accused, PW14 and deceased were staying inside the hotel and at that time the alleged incident has taken place. The accused has also not come up with any other explanation except by saying in 313 statement that he does not know anything and has shown his ignorance and he has tried to take up a defence of plea of alibi and he has also not establish the said contention either by examining anybody or by producing any documents.
19. Though the learned counsel argued that PW14 might have committed the murder of deceased Harish but if he has committed, how suffered injuries, who caused the injuries is not forthcoming
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and the theory tried to be put forth has not been made out in the evidence. In that light the said contention is not acceptable. When the evidence which has been produced by the prosecution is able to prove the guilt of the accused beyond all reasonable doubt and there are no good grounds made out by the appellant-accused to interfere with the impugned judgment and order of conviction. We are of the considered opinion that there are no good grounds to interfere with the said order.
20. We have carefully and cautiously gone through the judgment and order of conviction and sentence passed by the trial Court. There are no illegality or perversity or capriciousness in passing the impugned order and said order deserves to be confirmed.
Accordingly, the appeal is devoid of merits and the same is dismissed.
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The trial Court is directed to issue the conviction warrant to serve the sentence.
Sd/-
JUDGE Sd/-
JUDGE *AP/-