Karnataka High Court
B N Vajrappa vs The State Of Karnataka on 7 September, 2010
Author: N.Ananda
Bench: N.Ananda
_ 1 _
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS Ti-IE Tm DAY OF SEPTEMBER 2010
BEFORE
THE HOIVYBLE MRJUSTICE NANANDA
CRIMINAL APPEAL NO.1406 or 2003- if "'
Between: _
B.N.Va}'rappa
S/o L.Narayanappa,
Aged about 24 years,
Student, Residing at
Chikkabegur Village,
Begur Hobli, *
Bangalore South Ta1u.1:;" _ Appellant
(By Sri. S. HanumanthAa..i.a:h;. Av.dVt,o <:'7avte)':--. =
The Stateiof Kain"a.ta»k'a'a... _
By Hebbngodi P.o1i'--c't:, '' ._
Bangalore'S_outh .'_I'a'1gtii«;_,..'S'
Represented' by'the '
gStat»~e~'.,PuSAb1ic Pr"ose_c_uftor,
.V High" Cofiirt" Building.
'1_VBan»ga1o_r'ep+3550 O01. Respondent
(\"f5YFE'a.ri;'VF;'}"K.a11?=.u'nakar. High Court
Go'a{ernmen.tiP1eader}
Il=Il=*!l=Il=
it Crimina} Appea} is filed under Section
"_3..7"4._.*of Cr.P.C against the judgment dated
~.i_'~-'2'i}.08.2003 passed by I Addl. District and S.J.,
Bangalore Rura} District, Bangalore in S.C.
'°<_No.20/2000 convicting the appe1lant--accused for
-2-
the offence punishable under Section 307' of Indian
Penal Code and sentencing him to undergo R1. for
7 years and he is also liable to pay fine of
Rs.5,000/~ and LE). to undergo 12.1. for 4 months.
This Criminal Appeal coming on for
this day. the Court delivered the fo11owing:w_....__".V.'x.V;.
J U D G M E N T
The aPi3ei1ant was array*f'%'d"' as p tried for an offence under SeoAli.io:n_l Penal Code in S.C.No.2O/20L(:}OV_ onihlthe' I Additional Sessions °BAan.ga'i*o.re_efiRural District, Bangalore.
2. Thei'*1se.ar;1ed':¢i::5Se'sSionsl"'"Ju'Vdge convicted the accused7--. "and l'.l:'s.elx;..te'1a__eled. him to undergo imprisonmentl for .a penpd of 7 years and pay fine _._of default to pay, rigorous l'ji.f]'if.:)VI"lS.VOf1vIT£§311t""$01" a period of 4 months. It is orldelreeci lt'lila'_'{.__t'lja_.elV.fine shall be paid as compensation V to --~--"----lSr'i.".l-£.V.Ramaiah. Cg
3. I have heard learned counsel for the appellant (accused) and learned High Court Governm--e_nt Pleader for the respondent --- State. 4' In brief, the ease of the,~pr_ose(:liitilo'r:;.is follows:
PW3 -- Ramaiah is a 'resi..dentv-of l Village. He is an agrieultur_i_slt=,a1'i.d he was playing harmonium and singliité" _bhaj2ana"slp'vdli'iring festivals in Sri.Venkataramaflai~~S9sf?"I'Hl'».r;llellrf1l§llé5.:~,~"a.nd Renuka Yellarnrna PW} R.Venkataehala.pa!thlil by of PW3. The paternaiil _' and paternal grandfather brothers. PW3 and the accused '\5ve,re~havlin§;l enmity in respect of lands ;,'i'llS"1't1.&1a"L.;c,-aci girl lChikkall5eg,'11r Village. The lands of the a'c_.c'i:_aé'd lth_e_',.lands of PW3 are adjacent to each ot.he3'._._ 'i'her'e'lwere Certain mutation proceedings lli'--«.__pe.nding"before the Tahasildar of Bangalore Rural .._13~:"s:;Vrtc"'*.i.
On 14.02.1999 (day of Shivarathri festival] at 9.00 p.m., PW3 Ramaiah was playing '(\ I -'\._..»{/\..A/'*-false harmonium and singing bhajanas in S1'i.Renuka Yellamma Temple of Chikkabegur Village.
accused assaulted PW3 with a chopper and multiple injuries, with such knowledge.:T'alnld:lVA' intention if by such acts. ac_.eus_ed death of PW3. he would have :"oee--.n'~helL*I the offence punishable urlde-:..'zV Penal Code. There izvere the incident took place Temple.
After assaulting.¢PW33,~acc:used:.__ra..nlléaixfay from the place. PW} Hospital at B a n g a l o 1' e an V 'ti o rm a t i o n. Th e charge sheet was submitted' Vagain.-3._tlt--l*i'e Va---C_c'u"sed. o'i<de*::' to bill-llilllrlilg home the guilt of accused, on evidence of PWs.1 to 12 and alsolon coritie-'tits of documents marked as Exs.Pl to P1'o';3_eAt1;ution had also relied on material objects ' ._as_pVe1'"'AMOs. 2 to 6. 7'k).g~ »---i'3/'-"'*'£\ e5e
6. The contents of first information ~ EX.P}. spot mahazar -~ Ex.P2. photographs marked as Exs.P3 to 5 reveal that PW3 was assaulted in the precincz'ls"»of Sri. Renuka Yellamma temple at about 14.02.2010, when he was playing h2lf'I'IH1'()":'fl1~l..V.llV1I',A1".V"E3:'I1'lZlW:
singing bhajanas with other dVei}>oiile'e,.sl;'._ was suggested to PW3 that he}s'L1fferepd'_ipliI'ij'uir'ies.Vll when he fell down on burlt1.i:n"g 1am*--p_lthe precincts of said temp"i.ex.
7. The mediical by PW--5 Dr.s.Krishd.dv;i»p_aii':f};wud1d__re.yed~1 ithatlon 14.2.1999 at about examined PW--3 I-I.V.Rarnleslh= and: injuries:
1} Deepovincdillsepd wouA1'2.dll"'over the right side of neck uppger :1/Brdrneasuring about 5" x 3" x muscle doeep.;_---,Bl.eeding"**"preseni. Fracture mandible is ac' pnotedfip ' _ §vnpcis_edp"Wound over the left side of frontal 0' re-gion'v.["*«s1e.e»d'ing present. 3} lncilsed "s.'ffw.:'iund over the occipital region me'asL1__'rin.g° about 6" X 3" 2; bone deep. Bleeding present, was admitted on 15.2.1999 and ll':*d.is.charged on 22.4.1999. PWVES had deposed that N» ,5, on the date of admission. the condition of PW--3 was deteriorated. He had suffered extensive hemorrhage. Therefore, PW-5 arranged for a bottle of bloodkfave to the PW3. PW--5 has producpetE:Vi\/'tL~V.'i"'-«V. L» register extract as per E3x.P--9 and the 9 per Ex.P--8.
9. During cross examinatiorid;-p h.a"s_'den.1"ed7fA the suggestion that if a pe'I'i~~s.on At"a1:1e:.A=a._'i«--s.hairp edged weapon, injuries no_t_e"d,_by h.i'md_cou§ld be caused. Apart fromvt'--hV:i's_.A '--no%.ti3i'f1--gjvvviiistelicited from PW-5. Thus. the "W-5 on exarnin.ittio_r1_A1Ao9vf'l_--vVP}7ii'e3gata'___11.30 p.m., on 14.2.1999 in the hospital that pwms had suffered above,in._1uries..:Vat~abo-utT.9.00 p.m.. on 1«4§.2.1999 in the mrtéc3t'i1ct*s&of Rieiiniifltkayellamrzia temple at Begur.
"'F1j1ev.ref'ore',----.the next point for determination is vtrhe.th'er 9ti-535.95"prosecution has proved beyond 'reasottalflehvdoubt that accused assaulted PW--3 at V' "..tihe's.gtid" place and time with the intention and ._j'Kn'o\}tr]'edge that if by such acts if accused had 3/L), (9\--«""'Qi'\.
M7- caused death of PW--3, he would have been held guilty of an offence punishable under Section 302 of IPC.
11. PW~3 is the injured witness.
deposed that there was longstainidbing iand--lddli--sVp_utVe between PW-3 and the father ol"V..a:c-c.useCiV._"_tAA"On date of Shivarathri fest.iVa'l'--vs.o:.V:o"f. th"e*-- 'at about 8.30 p.m., P\7§a'.,3 arid' were singing bhajans in the hall had been The accused Was"lslt._aVn'diIl'ng P"W:_-3' at a distance of about accused assaulted on the Al'e_ftf with a chopper.
Accused also'l3.,ssaulted«"on the right side jaw of PWW "P\}V-3-31 fell soon. He was shifted to Victoria identified the weapon of offence also'?-.V.ident.ified the photographs as E3xs.P-3 P~5, whi-ich depicts the scene of occurrence. During cross examination. it has been W:sug_lggest;ed to PW3 that he was not assaulted by (L), "--«l3"""'L:d*t«» I -8- accused and he had not suffered any injuries due to assault. It was suggested to him that he fell on "prabhavali" of the deity and suffered injuries has denied this suggestion. Though previous enmity between PW--3 and being injured witness would b'e""ll'ea.st'l..jdisplols-3¢i'--.:toll"*' falsely implicate accused leaping"-_lalsidle..jA.t.'h.e«.
assailant.
13. PW--4 Hutchappa is related to'-acicuselid and _ PW-3. They have desclelrtdecl 'fi_ "a,_c,o'm.mon ancestor. PW---4 has deposed that_"o._n day--fjo{.7~ShiVarathri festivalfiof P_Vv_"s.3 and 4 were singing bhajans l'Rpent1_l{a.y--elllainiina temple at about 9.00 p.m. 5'1'-hey bhajans in the hall of the About lltylrenty villagers were standing the_l£je.llitPlW.;l3 singing bhajans and he was also playing hariinouniuni and PW--4 was playing tabala. ll"'~.«.._A.Ccuse'Cl jliwas standing ' behind PW--3'. Accused on right ear of PW--3 with a chopper.
suffered bleeding injuries and there was free .,l_ll:.'flow of blood which spilled on the floor of the _9s temple. The accused ran away from the place of occurrence. Though PW»-4 was treated hostile for not identifying the weapon of assault. his evidence relating to other aspects is consistent with t1":'el:'cas:e, of prosecution.
14. During cross examination, PW--4_-~'l:»a..s'~.rd'e.nl.ed_u the suggestion that PW--3 fell on suffered injuries. ,
15. PW--6 H.Rajappa wvi.tneAs_Vs_;ed; lflmthe occurrence. PW--6 has the day of Shviarathril_Afe'srti\{a3lVéolfvjthvve year 2003 at about 8.30 p.m., helhad gonefrto"-._l§enukayellamnia temple to repair,--t.he suer._ial~l'igh-t«system. At that time, PW--3 tlfiarrrlolnlium and singing bhajans along {father of PW--6) was playing tablala. 10 adults and about 20 small lll"'~.«.._lchildren_were sitting in the hall of the temple. PW- the sound of screaming and entered the V"-__l"temple and found accused armed with macchu. _4u'.'standing near the door of temple. When questioned rm. (14£\/'-»--3'¥''-'''¢Q>\ :
WV! 10 VIII by PW--6, accused threatened him that if he was to disclose the matter to anybody. he would finish him. PW~3 had suffered injuries on his neck he was lying on the floor. Two of his tee_t.h_l4'V. also lying at the place of occurrence. spilled on the floor and the 1nat"s»A"W'e':e l-aiso with biood. He has identifiedl".__tbli_¢A. p1~{_g.._tfo~grap£i'g..l':V"
marked as Exs.P--2 to P6, SCEIIC Of OCCLlI"I"€I1C€.
16. During cross eXa4In«.ina'_tiQ.1:i{ has denied the suggesting --fi_;_h:at false evidence due V . . ' . V .' ;;._, to --. , He has admitted 'that 'he'._f.hVad_"an0t seen the accused assaulting Al:1.€1V$T:d€I1i€d the suggestion that "p.*6ufflei"e'dlV irlluries due to fali on AVTHIF-pyom the evidence of PW--6. I find thathe wa.s't-a_:=i" immediate post occurrence witness. has deposed about the presence of accused with He has deposed that PW--3 had suffered ll"«____"i:1'1ju;ries on his neck and he was lying on the floor pllcflthe temple. Two of his teeth were broken and ~11» they had fallen. In the hall of temple, blood had spilled and mats were also stained with blood. 1'7. PW--1 Is the son of PW--3. At the occurrence, he was staying in his * watching 'I'.\/. On learning the i.n..c.iydent-;.Vh'e'--:c:vaarriVe4_'tVo the place of occurrence and saw' h:jse..f'ath.er~ unconscious state. He had'ds«I..1_ffere-d 'in¢juirv_ie1sfvo_HnW the right side of his neck and also-,V:onV_the"right side of his cheek. The l'l"l:':1'tt-El..._..:5-_p1\'Ac_v;8.(§"a'~,:lfl.._"tfi€.'t€1'np1€ were stained with blood. to Sanjay Gandhi Hospiliai};jilt.l?'éi1'.:fi2£D'§a1'5r§'.'T'*v».._..After first aid treatmeatit, to Victoria hospital. On theA"fo'llow1hg.jf.dda.y'">"rnorr1ir1g, he went to I-Iebbagodi hduospitahi afidivlodged first information. V_'l33*._1ri_pr'1g_ cro'Ss.--..e.)<:'amir1ati0n, he has admitted V.'t_1h'e;drc--lyat:v€_o'ns«hi'p.._between accused and PW»3. He has adrhyihttedVtlilatdfadbout four or five years prior to the date "occtirrence, a quarrel had taken place the family members of accused and the members of PW--3. He Eas denied the J «L. ,1/\.-£\, {L}.
-12- suggestion that PW--3 received injuries, when he accidentally fell on "prabhavali" of deity during Shivarathri festival.
19. PW--2 M.Nazir has given evidence 1*e_1a'ti'n..g--.._::t.do:,' the recovery of chopper. at the instance..of,'_a»ec'u:se_d. Pl/V-2 M.Nazir has deposed he was going near Hebbagodi polilcellstatiorfiinl ord'e'19x 'to deliver LPG gas to a ne"a.r'V"t--helflpolice station, he was callecirby Police took PW-2 and accused aloI1g"l-xlzvitvhloth.§llrf.ls~tla_'ff in a jeep to Chikkabegur."'«.p_,#The:__Jeep 'Vvlasf_"--St_o:Vpped near the house of accused'. entered his house and removed beneath the cot and produced V_:Vsa.rneA°be"f.ore the Sub Inspector of 'V'Polic"e.. '-:,1.,,(3.~w.14.l"' "" was seized under mahazer n1__E1l'}f:_e <1. 3:5: ..._P;--2,. V V 20. "E)ur___i'ng«--'*cross examination, he has denied the Wll":7d"sV{iggpestioii that he has given false evidence against ,';l"(;'I3ti'Sf3'.'~"Cl at the instance of police. r\j . -L/\~ "'h"'"'LQl/\' -13-
21. The learned Counsel for accused has made the following submissions:
(i) There was delay in recording the state111_en_t._o~f._ PW-3 under Section 16fCr.P.C.
V,
(ii) The independent witnesses to the-"oc.c:'urre:ri<ce have not supported the case of-..ppI3ossecut-ion."~.cpA_
(iii) The prosecution has relied on the eovirience lgofl interested witnesses. _ _ _ .p_ 5
22. As already stavted, was the" injured witness. He has deposeld;_l'thactil"assaulted by accused with is fully supported liiy"lv:',m_eci.ilca.l"~.evidence. There are no reasons to 'dpisca_rd:'v.hli'sl_:levidence. The fact that there vva.s enlniityrhetvareléln accused and PW--3 would le's.tal:ivE.i€sI"i.j'~.th'iat. accullsled had motive to commit the o'f_fe'n&:_cle; Areividence of PW--3 finds corroboration ~ from ,_evidvenlcle'of PWs.2, 4 and 6. :33. On "careful consideration of evidence of PW«2. PWW4 and PWWB, I find that their evidence "not suffer form any iscrepancy. The M ' '
-14 _ suggestion of the defence that PW--3 suffered injuries after falling on "prabhavali" of the temple is far fetched suggestion.
24. PW--5 has given the description of They were on Vital parts of the body of V' weapon used was a dangerous deposed that due to heinorrliage PW--3 had deteriorated at ilieV:"t-ijne"o'-fV:lf1i.sx PW--5 transfused a 'buloohgjtc/to _'§PW--3. Therefore, considering"-fftdhe:~_r1abtureVc:':o»f' injuries and the medical evi.dence.,*"'§.:h.olq=._tdlftatr'accused had assaulted 3a 1991.9at:"~«.'vvabo_-ut 9.00 p.m., at Renukayeilamm'a,V_.fteinbpl-ed""ch 14.2.1999, with such intention and._Vkn.owl'edge, if accused by his acts "the d9eVa't'h of PW--3, he would have been offence under Section 302 of IPC and'_ther_eh§__'::committ.ed an offence punishable under Section 307 of IPC.
,'_I.'he*'learned trial Judge having regard to the 'na't_u'1*'e7of injuries and the place of occurrence has ,5 Yb: ca 4'\~$"k.-'\..M~Efl}..
-15- held that accused had come prepared with a chopper to assault PW--3 within the precincts ofthe temple. The trial Judge has sentenced undergo imprisonment for a period of seven ye'a.r'sr. The learned trial Judge, while se.n.tenc--in'g'"a_c.cuse.d to undergo imprisonment for p"er'iod»._of'"' years has failed to notice tl_ia't.._Vacclu-sed to reform himself and he b_vear.'a..r1_yficriminal ' antecedents. Tliereforel' that the sentence of of seven years has to for a period of fivle_.y'ea;»rVs..lV" '
26. In t_he._ resvulfirtg._v4I'<pa'ss'-i;_1*i*e-l following order:
Appeal is a"cce'p'ted*~._in part. The conviction of accuseldl' for ar;..V_olffen'<:e punishable under Section confirmed. However, the period of imprisolri-rIi'evnt.At'is" reduced from seven years to five years". fine imposed by the trial Court is _. i_,Ai;'f.glorifirm..ed5 ,'\), I: .43»/L,;,,..¢Q¢, W19, Office is directed to send back the records along with a Copy of this judgment to i111pien1_§3_nt the sentence.
AHB/nass