Karnataka High Court
Siddamma W/O Bhimsha Hulandagera And ... vs The State Through The State Of Karnataka on 9 January, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.3635/2012
Between :
1. Siddamma
W/o Bhimsha Hulandagera,
Age: 58 years,
Occ: Business,
2. Shivamma,
W/o Devindra,
Age: 40 years, Occ: Buisness,
3. Kantamma
W/o Bheemaraya Soolahalli,
Age : 42 years,
Occ: Coolie,
4. Sumitrappa,
S/o Mallappa Hulandagera,
Age: 58 years, Occ: Coolie,
All R/o Pilkum Area, Wadi,
Tq: Chittapur,
Dist: Gulbarga. .. Appellants
( By Sri Mahantesh H. Desai, Advocate )
Crl.A.No.3635/2012
2
And:
The State through
The State of Karnataka,
Through: The Wadi PS,
Represented by SPP:
High Court of Karnataka
Circuit Bench at Gulbarga. .. Respondent
( By Sri P.S.Patil, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to set aside the impugned judgment of
conviction and order on sentence passed by the IV
Addl.Sessions Judge, at Gulbarga, in S.C.No.2/2011, on
14.8.2012, convicting the accused/appellants No.1 to 4 for
the offence punishable under Section 325 read with
Section 34 of IPC.
This Criminal Appeal coming on for Hearing this day,
the Court delivered the following:
JUDGMENT
The present appellants who were accused Nos.1 to 4 in S.C.No.2/2011, in the Court of learned IV Addl.Sessions Judge, Gulbarga, (hereinafter for brevity referred to as `trial Court'), have challenged the judgment of conviction and order on sentence dated 14.08.2012, wherein accused were convicted Crl.A.No.3635/2012 3 for the offence punishable under Section 325 read with Section 34 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC'), and sentenced them accordingly.
2. The summary of the case of the prosecution is that on 5.6.2010, at about 9.00 a.m., in a place called Pilkum Area at Wadi, all the four accused in furtherance of their common intention to commit the murder of deceased Ramesh, had assaulted him by hands and kicked him on his back and squeezed his scrotum, due to which, Ramesh died on the spot. Therefore, the accused had committed the offence punishable under Section 302 read with Section 34 of IPC. Since the accused pleaded not guilty for the charges framed against them for the offence punishable under Section 302 read with Section 34 of IPC, the trial was held.
Crl.A.No.3635/20124
3. In order to prove the alleged guilt against the accused, the prosecution got examined thirteen witnesses as PW-1 to PW-13 and got marked documents from Exs.P-1 to P-11 and material objects from MO-1 to MO-5. On behalf of the accused, neither any witnesses were examined nor any documents were marked as exhibits. After hearing both side, the trial Court by its impugned judgment of conviction and order on sentence dated 14.8.2012, convicted all the four accused for the offence punishable under Section 325 read with Section 34 of IPC and sentenced them to undergo rigorous imprisonment for a period of three years and to pay a fine of `1,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of three months. It is against the said judgment of conviction and order on sentence, the appellants/accused have preferred this appeal.
Crl.A.No.3635/20125
4. The lower Court records were called for and the same are placed before this Court.
5. Heard the arguments from both side and perused the materials placed before this Court.
6. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
7. The learned counsel for the appellants/ accused in his argument submitted that the conduct of PW-1, who is the mother of the deceased, is unnatural, as such, her evidence is not trustworthy. Consequently, the accused deserves to be acquitted of the alleged offence. He also submitted that admittedly there were no injuries found on the person of the deceased except the injury to scrotum in the form swelling and hemorrhage. As such, the allegation that accused Nos.1, 2 and 4 also have Crl.A.No.3635/2012 6 assaulted the deceased has fallen short of proof, consequently, they deserves their acquittal.
Learned counsel for the appellants/accused also submitted that the prosecution has failed to prove that there was common intention to kill or hurt the deceased and to cause his death, as such also, Section 34 of IPC would not attract in the instant case. Stating that admittedly there was no prior enmity between the parties and that accused No.3 being a lady and since has already completed six months of imprisonment, learned counsel submitted that if at all this Court finds accused No.3 as guilty for the alleged offence, the sentence of imprisonment undergone by her may be considered as the sentence in its entirety and accused be acquitted of the alleged offence.
8. Learned High Court Government Pleader in his very brief argument submitted that the presence of all Crl.A.No.3635/2012 7 the accused at the commission of the offence is not in dispute. There is an intention to assault with each of the accused, however, there was no intention to commit the grievous offence. Learned High Court Government Pleader however submits that it was accused No.3 - Kantamma alone who has committed the grievous offence. The doctor has also supported the case of the prosecution, as such, the trial Court has rightly convicted the accused.
9. In the light of the above, the points that arise for my consideration are :
(i) Whether the prosecution has proved beyond reasonable doubt that accused Nos.1 to 4 on 5.6.2010 at about 9.00 a.m. in Pilkam Area at Wadi, in furtherance of their common intention to voluntarily cause grievous hurt to the deceased Ramesh, assaulted him and thus have committed the offence punishable under Section 325 read with Section 34 of IPC? Crl.A.No.3635/2012 8
(ii) Whether the judgment of conviction and order on sentence under appeal deserves any interference at the hands of this Court?
10. The case of the prosecution begins with CW-1/PW-1 - Smt.Maralamma, wife of Laxman, lodging a complaint as per Ex.P-1 before the complainant-Police. The summary of the said complaint is that the complainant is a resident of Pilkum Area at Wadi and deceased Ramesh, aged about 20 years, is one among her children. On 5.6.2010, at about 8.30 a.m., said Ramesh had been to buy some Biscuits and gutka from a nearby shop. After his return to home, he complained to his mother that one Smt.Siddamma Hulandagere, Smt.Shivamma Hulandagere and Smt.Kantamma Soolahalli have accused him of committing theft and are scolding him, as such, they must be questioned. Responding to his son's complaint, the complainant-Maralamma, joined Crl.A.No.3635/2012 9 by her son Ramesh, approached the accused and questioned as to why they were abusing her son and accusing him of some theft. At that time, the accused Nos.1, 2 and 4 started assaulting him, by that time, accused No.3 who was abusing the deceased with filthy language, being inside the house, also came out and holding the scrotum of the deceased, squeezed the scrotum, due to which, Ramesh fell down and died on the spot. The complainant-police registered the said complaint against all the four accused in their Station Crime No.100/2010, for the offences punishable under Section 302 read with Section 34 of IPC. After completing the investigation, they have filed the charge sheet against the accused for the alleged offence.
11. Among the thirteen witnesses examined by the prosecution, PW-1 is the only material witness, who is also shown to be an eye witness to the Crl.A.No.3635/2012 10 incident. The said witness being herself the complainant and also the mother of the deceased has reiterated in her evidence the very same contentions what she has stated in her complaint at Ex.P-1. She categorically stated that it was in her presence, the accused assaulted the deceased. She has given a detailed account of the alleged over act of each of the accused. Apart from stating that the houses of the accused are very near to her house with a gap of about seven to eight houses, has also stated that, when she questioned the accused as to why did they abuse her son, all of them started assaulting her son. She has stated that accused No.1 assaulted her son on his back and accused No.2 caught hold of the color of the shirt of the deceased and accused No.4 assaulted the deceased with hand. Accused No.3 Kantamma abused the deceased with filthy language and also squeezed his scrotum, at that time, her son Crl.A.No.3635/2012 11 fell on the ground and died. The witness has also stated that after she lodging the complaint with the respondent-Police, they visited the spot as shown by her to them and drew a scene of offence panchanama. From the spot, the police also recovered one pair of chappal of her son found fallen on the spot as per MO-1. She has also identified the clothes said to have been worn by her son at Mos.3, 4 and 5.
The witness was subjected to a detailed cross- examination, wherein she adhered to her original version.
12. PW-2 - Bharati is undisputedly the daughter of PW-1, as such, elder sister of the deceased, who also in her evidence has supported the evidence of PW-1 and has stated that, after hearing the crying noise of her mother, she joined by others, rushed to the spot only to see that her younger brother had Crl.A.No.3635/2012 12 fallen dead and the accused had ran away from the spot.
13. PW-3 - Vijayakumar and PW-4 - Papu alias Hanmanth, though were projected as eye witnesses to the alleged incident, but, they have pleaded their ignorance about the incident though they stated that they know about the death of the deceased Ramesh. Both of them have stated that they are not the eye witnesses to the incident.
14. PW-5 - Shankar, a panch witness, has not supported the case of the prosecution with respect to drawing up of scene of offence inquest and cloth seizure panchanama as per Exs.P-4, 5 and 6.
15. PW-6 - Dr.Amruth, has spoken about he conducting the post mortem examination on the dead body of the deceased Ramesh. The witness has stated that he has found no wounds or ligature mark Crl.A.No.3635/2012 13 on the body of the deceased, however, swelling of the scrotal was found. The doctor has opined that cause of death was due to vaso-vegal shock as a result of injury to scrotum. Stating that he has issued a post- mortem report in that regard, he has identified the same at Ex.P-7.
16. PW-7 - Chandramappa, a Police Constable has stated about he carrying the body of the deceased to the post-mortem examination and collecting the clothes of the deceased after post-mortem examination and producing the same before the Investigating Officer.
17. PW-8 - Sarita and PW-11 - Namrata, Women Constables, have stated about they apprehending the accused.
18. PW-9 - Mahantesh, the Police Sub-Inspector, has stated about he receiving the complaint from Crl.A.No.3635/2012 14 PW-1/CW-1 at about 10.00 a.m. on 5.6.2010 as per Ex.P-1 and after registering the complaint, preparing a FIR and submitting the same to the Court. He also sated that with due permission from his superior, he visiting the spot and getting an inquest panchanama done in the presence of panchas, entrusted further investigation to his superior.
19. PW-10 - Sridhar, an Assistant Engineer in Public Works Department, has stated about he preparing a sketch of the scene of offence as per Ex.P-11 and submitting the same to the Investigating Officer.
20. PW-12 - Shankargouda, the second Investigating Officer, has stated about he recording the statement of several witnesses in this matter and receiving the post-mortem examination report from Crl.A.No.3635/2012 15 the doctor as per Ex.P-7 and also filing the charge sheet against the accused.
21. PW-13 - Vijayakumar, the Circle Police Inspector, has stated about he receiving the information about the crime on 5.6.2010 and visiting the scene of offence and drawing a scene of offence panchanama in the presence of panchas as per Ex.P-5 and seizing MO-1 from the spot. He has also stated about he recording the statements of some of the witnesses and arresting the accused and producing them before the Court. He has also stated about he requesting the Public Works Department authorities for drawing a sketch of scene of offence and handing over further investigation to Circle Police Inspector, Chittapur.
22. The accused were charged for the offences punishable under Section 302 read with Section 34 of Crl.A.No.3635/2012 16 IPC, however, the trial Court has acquitted them for the offence punishable under Section 302 read with Section 34 of IPC, but, convicted them for the offences punishable under Section 325 read with Section 34 of IPC. As such, keeping in mind that the evidence of the parties is now required to be appreciated confining the same to Section 325 read with Section 34 of IPC, the said evidence has to be appreciated.
23. It is only PW-1 Maralamma, the complainant and also the mother of the deceased Ramesh, who is an eye witness, has supported the case of the prosecution. Even though PW-2 Bharathi also has deposed in her evidence on the lines as that of her mother Smt.Maralamma, but, admittedly the said Bharathi is not an eye witness to the incident, rather, she heard about the incident through her mother. Since by the time Bharathi rushed to the spot, the Crl.A.No.3635/2012 17 incident had already taken place. Even though the prosecution has examined PWs-3 and 4 projecting them also as eye witnesses, but, as already observed above, neither of them have supported the case of the prosecution in any manner. Except stating that they knew deceased Ramesh and that he is no more, both the witnesses have pleaded their ignorance about the alleged incident. Thus, it is the evidence of PW-1 which has to be analysed with great caution.
The evidence of PW-1 that on the date of alleged incident, her son Ramesh had been to a nearby shop to bring Gutka and biscuits and that he brought them from the shop, has not been specifically denied from the accused side. Further the evidence of PW-1 that while he was coming back, he was abused by the accused herein, which was stated to the complainant by Ramesh himself, which made her to go to them and to question them as to why did they say so, Crl.A.No.3635/2012 18 is also not specifically denied. It is at that point of time, according to PW-1, the accused started assaulting her son Ramesh, in which process, Kantamma squeezed the testicle of her son Ramesh.
In the cross-examination of PW-1, a suggestion made to the witness that since the deceased attempted to assault the accused, the present quarrel has taken place, the same would go to show that the accused have admitted the occurrence of some incident, where the accused and the deceased faced each other and some quarrel took place between them. Thus, the presence of the accused and the deceased and some quarrel between them is not only stated by PW-1, but, also in the form of above suggestion admitted from the accused side also. It is in the said quarrel, according to PW-1, the present appellants assaulted her son. PW-1 has clearly and specifically stated and explained the role of each of the accused. While Crl.A.No.3635/2012 19 reiterating what she has stated in her complaint, the witness has stated that accused No.1-Siddamma held the shirt color of the deceased and accused No.2 - Shivamma assaulted on the back of deceased Ramesh and at that time, accused No.4-Sumitrappa held the hands of the deceased Ramesh and assaulted him. The said accused No.4 is undisputedly the younger brother of accused No.1 Siddamma. The witness has also stated that, at that point of time, accused No.3 - Kantamma who was inside her house, was scolding her son and abusing him using filthy language. According to PW-1, while abusing the deceased, Kantamma came out and holding the scrotum of Ramesh, the son of the complainant, pulled it down and squeezed. It is at that act of Kantamma, her son fell down and died. Even in her cross-examination, PW-1 adhered to her original version. Crl.A.No.3635/2012 20
24. The evidence of PW-2 is in support of the evidence of PW-1. However, as already stated above, even according to PW-2, she rushed to the place after hearing the noise of the quarrel, by which time, her younger brother Ramesh has already died. Thus, the evidence of PW-1 which could not be shaken in her cross-examination would go to show that accused Nos.1, 2 and 4 had only assaulted the deceased with their hands and leg, whereas, accused No.3 squeezed the scrotum of the deceased. According to the doctor i.e., PW-6, who has given the post-mortem examination report at Ex.P-7, the death was due to neurogenic shock as a result of injury to the scrotum. Therefore, the main cause of death is the assault caused by accused No.3- Kantamma in the form of squeezing the scrotum of the deceased Ramesh. Even according to the prosecution, the act of the remaining accused has in Crl.A.No.3635/2012 21 no way caused any injury to the scrotum of the deceased and also no external injuries are shown to have been caused at the alleged assault said to have been made by accused Nos.1, 2 and 4.
25. It is in that circumstance, whether the injury leading to cause death was caused by accused No.3 - Kantamma alone and whether the alleged act of remaining accused i.e., accused Nos.1, 2 and 4 also amounts to sharing of the common intention with the act of accused No.3-Kantamma, is a point to be considered.
It is on the said point, learned counsel for the appellants in his argument vehemently submitted that the prosecution has not placed any material to show that there was any meeting of minds or prior preparation to show that there was common intention among the accused to cause the death of Ramesh. Crl.A.No.3635/2012 22
Per contra, learned High Court Government Pleader in his argument submitted that presence of all the accused in the place and each of the accused assaulting the deceased clearly go to show that all the accused had an intention in common to assault and take away the life of the deceased Ramesh.
26. In order to attract Section 34 of IPC, the prosecution has to prove that the act has been done by several persons and consequently, that the said act was done in furtherance of common intention. In order to show that the said act has been done in furtherance of a common intention, prosecution is also required to show that the accused had shared a common intention among themselves, otherwise, Section 34 of IPC would not come into play. Though to attract Section 34 of IPC, it is not necessary that each one of the accused must assault the deceased, but, at least, it has to be shown that they shared a Crl.A.No.3635/2012 23 common intention to commit the offence and in furtherance thereof, each one played his assigned role by doing separate acts either similar or divorce. There must be material to show that, overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused persons.
In order to see the common intention, it is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of the crime as also prior and subsequent and attendant circumstances. As observed by our Hon'ble Apex Court in Harjit Singh and others vs. State of Punjab, reported in 2002 SCC (Cri) 1518, the subjective element in common intention should be proved by objective test. It is only then that one accused can be made vicariously liable for the acts and deeds of the other co-accused.
Crl.A.No.3635/201224
In the instant case, even according to the prosecution, accused No.3 Kantamma was inside the house while the remaining three accused were said to have been assaulting the deceased Ramesh with their hands. According to the prosecution, the said Kantamma i.e., accused No.3, immediately after coming out from the home, put her hand on the scrotum of the deceased Ramesh and pulled it and squeezed it. Thus, when the remaining three accused were assaulting the deceased, said accused No.3 Kantamma was inside her house. Even after when she came out, she all of a sudden caught hold the scrotum of the deceased and squeezed it. There is no evidence to show that either the remaining three accused were anticipated about the act of Kantamma or they could have, in the circumstances of the case, probabalise the said act of Kantamma at that moment. There is no evidence even by PW-1 or PW-2 Crl.A.No.3635/2012 25 to the effect that the intention of Kantamma or the possibility of she doing the act of squeezing the scrotum of the deceased Ramesh was either anticipated or thought of by the remaining accused or at least, the circumstance warranting the drawing of any inference in that regard as against the remaining accused. Therefore, merely because one of the accused having entered the scene of offence with some delay, and has done some act, by that itself, in the present circumstances of the case, it cannot be inferred that other three remaining accused had shared any such intention with accused No.3 so that the act of accused No.3 can be called as an act in furtherance of the alleged common intention of the group. The trial Court failed to notice the said aspect. On the other hand, it after noticing that there was presence of all the four accused in the incident, jumped to a conclusion that there was sharing of Crl.A.No.3635/2012 26 common intention by all the four accused, as such, Section 34 of IPC is attracted. In view of the above analysis, the said reasoning of the trial Court now proves to be not acceptable in the circumstances of the present case.
27. As could be noticed from the evidence of PW-6, the doctor and the post-mortem report at Ex.P-7, except swelling of the scrotum and hemorrhage of both the testicles, there were no other external or internal injuries found on the deceased. As such, even after it is proved that the remaining three accused i.e., accused Nos.1, 2 and 4 have assaulted the deceased Ramesh, but, the same has not resulted into any grievous injury nor caused any grievous hurt to him. The act of accused Nos.1, 2 and 4 cannot be called as the act committed in furtherance of any common intention. Their act would be only confined to an act of voluntarily causing Crl.A.No.3635/2012 27 a simple hurt to the deceased Ramesh, which is punishable under Section 323 of IPC, whereas, the act of accused No.3 Kantamma, as rightly observed by the Court below, resulted into voluntarily causing a grievous hurt upon the deceased Ramesh, which is punishable under Section 325 of IPC.
28. Regarding the place of the occurrence of alleged offence, the appellants have not seriously disputed. Furthermore, the evidence of PW-1 and PW-2 also further proves the place of incident even though the pancha i.e., PW-5 has not supported the case of the prosecution. The evidence of the Investigating Officer for the scene of offence panchanama at Ex.P-5 also go to show that the place of offence is an open place in front of house of the accused in Benjamin Building at Pilkum area at Wadi. It is under the very same panchanama at Ex.P-5, the Investigating Officer claims to have seized a pair of Crl.A.No.3635/2012 28 challpal at MO-1, which have been identified by PW-1 as the chappal that were worn by her son at the time of the incident. Thus, the place of incident also stands proved.
29. In the said circumstances, when the prosecution could able to establish the incident of assault by the accused on the alleged date of incident and also could able to establish that it was accused No.3 - Kantamma, at whose voluntarily causing of grievous hurt, the deceased Ramesh died, the trial Court has rightly held the said Kantamma guilty of the alleged offence. Though the trial Court has held the remaining three accused as equally guilty of the said offence, but, as already observed above, their proven overt-act falls short of attracting Section 325 of IPC as against them. It is for this limited variation in the judgment of conviction and corresponding order on sentence, the impugned judgment of conviction and Crl.A.No.3635/2012 29 order on sentence requires interference at the hands of this Court.
30. Learned counsel for the appellants further submitted in his argument that considering the fact that accused No.3 being a lady, the period of imprisonment she has suffered be appropriated and adjusted as the sentence in its entirety and she be let free. The said submission is opposed by the learned High Court Government Pleader, who submits that for the act of the accused No.3/appellant No.3, punishment awarded by the trial Court is appropriate which does not call for any interference in it.
It is the sentencing policy that the sentence ordered should not be either exorbitant nor for name sake for the proven guilt. It must be proportionate to the guilt for which the accused is found guilt of. Crl.A.No.3635/2012 30
In the instant case, the role of accused Nos.1, 2 and 4 i.e., appellant Nos.1, 2 and 4 is proved to the extent that they assaulted the deceased with their hands and leg, however, admittedly the same has not resulted into any injury upon the deceased. Thus, they were found guilty of the offence punishable under Section 323 of IPC. The learned counsel for the appellants submits that all these three appellants i.e., accused Nos.1, 2 and 4 have already suffered a total imprisonment of not less than four months each. Thus, I am of the view that they may be set at liberty by considering that the imprisonment suffered by them for such period as the period of sentence for the offence committed by them which is punishable under Section 323 of IPC and they may be acquitted of the offence under Section 325 r/w S.34 of IPC. However, the order on sentence with respect to accused No.3/appellant Crl.A.No.3635/2012 31 No.3 - Kanthamma deserves no interference at the hands of this Court.
31. Accordingly, I proceed to pass the following order :
ORDER The Appeal of appellant No.1-Siddamma, wife of Bhimsha Hulandagera, appellant No.2-Shivamma, wife of Devindra and appellant No.4-Sumitrappa, son of Mallappa Hulandagera, is allowed in part. The judgment of conviction and order on sentence dated 14.8.2012, passed by the learned IV Addl.Sessions Judge, Gulbarga, in S.C.No.2/2011, with respect to these appellants convicting them for the offence punishable under Section 325 read with Section 34 of IPC, is set aside. The accused Nos.1, 2 and 4 are acquitted of the offence punishable under Section 325 read with Section 34 of IPC, however, they are convicted for the offence punishable under Section Crl.A.No.3635/2012 32 323 of IPC. The sentence of three years of imprisonment imposed upon them is modified and held that the sentence of imprisonment already undergone by those three accused is appropriated and held sufficient for the offence committed by them which is punishable under Section 323 of IPC.
However, they are ordered to pay the fine amount of `1,000/- each as ordered by the trial Court.
The Appeal of appellant No.3/accused No.3 - Kantamma, wife of Bheemaraya Soolahalli, stands dismissed. The judgment of conviction and order on sentence ordered against her in the impugned judgment is confirmed.
If accused Nos.1, 2 and 4/appellant Nos.1, 2 and 4 are no more required to be continued in judicial custody in any other case/s, the Prison Authorities are directed to release accused Nos.1, 2 and 4 forthwith. Crl.A.No.3635/2012 33
The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.
Sd/-
JUDGE bk/