Karnataka High Court
Nagappa S/O Dulappa Tigadi vs The State Of Karnataka on 25 April, 2024
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NC: 2024:KHC-D:6870-DB
CRL.A No. 100250 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100250 OF 2023 (C)
BETWEEN:
NAGAPPA S/O. DULAPPA TOGADI,
AGED 35 YEARS, OCCU: DIRVER,
R/O: SANGANKERI VILLAGE,
MUDALAGI TALUK,
BELAGAVI DISTRICT-590001.
...APPELLANT
(BY SRI. S. P. KANDAGAL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH GHATAPRABHA P S
BELAGAVI DISTRICT,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
Digitally signed HIGH COURT OF KARNATAKA,
by SAMREEN DHARWAD BENCH-580011.
AYUB
DESHNUR ...RESPONDENT
Location: HIGH (BY SRI. M. B. GUNDAWADE, ADDITIONAL SPP)
COURT OF
KARNATAKA
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF
CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 29-11-2022 PASSED BY THE XII ADDL.
SESSIONS JUDGE, BELAGAVI SITTING AT GOKAK IN SESSIONS CASE
NO. 8028/2021 CONVICTING THE APPEALLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 IPC, AND THE ORDER
DATED 30-11-2022 SENTENCING THE APPELLANT TO UNDERGO
RIGOROUS IMPRISONMENT FOR LIFE AND PAY THE FINE OF
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NC: 2024:KHC-D:6870-DB
CRL.A No. 100250 of 2023
RS.1,00,000/- AND IN DEFAULT, TO UNDERGO FURTHER SIMPLE
IMPRISONMENT FOR THREE YEARS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
23.04.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant-accused has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short "Cr.P.C.,") challenging the judgment of his conviction dated 29.11.2022 and order of sentence dated 30.11.2022 passed by the XII-Additional Sessions Judge, Belagavi, sitting at Gokak (for short "Trial Court") in S.C.No.8028/2021.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. The brief and relevant facts leading to the case of the prosecution are as under:
3.1. That, the accused was charge sheeted by the Police Inspector, Ghataprabha Police Station for the offence under Section 302 of IPC.-3-
NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 3.2. It is the case of the prosecution that, one Smt.Renuka Laxman Tigadi, r/o. Sanganakeri village in Gokak Taluk lodged complaint at 6.00 a.m. on 10.04.2021 by appearing before the Police Inspector of Ghataprabha police station, stating, that her husband Laxman Mallappa Tigadi, aged about 42 years was killed by his brother-Nagappa Mallappa Tigadi i.e. accused, who is a vagabond. The accused frequently used to consume alcohol and quarrel with his brother deceased-Laxman stating that why he did not perform his marriage. 3.3. About one month prior to filing of the complaint, accused told his relative Dasharath Chunannavar that if his brother-Laxman fails to perform his marriage, he will kill him. Since then, the accused did not visit the house of the complainant. It is stated by the complainant that, on 09.04.2021 she had been to Gokak Government Hospital for the purpose of delivery of her daughter. At about 9.30 p.m. her sister-Savakka Rangappa Patil telephoned her and informed that, near the house of the complainant, by the side of the road, accused assaulted -4- NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 the husband of the complainant in order to commit his murder. Due to the assault, her husband-Laxman sustained grievous injuries on his head and face and blood was oozing. It was told to the complainant that her husband is lying by the side of the road and other residents of Sanganakeri village are there at the spot. On hearing this news, the complainant along with her son-in-law by name Manjunath Venkappa Arabhavi went to the scene of offence on a motorcycle. There, they noticed injured-Laxman lying by the side of the road with injuries on his head and face, but still he was alive and was not able to speak.
3.4. On enquiry, it was revealed that, at about 9.15 p.m. on that day, when Laxman was standing at the place of incident, the accused came there, picked up quarrel with him, and with an intention to kill him, he took a stone and assaulted on his head and face due to which Laxman sustained grievous injuries. Immediately, the said Manjunath and other residents of the village by name Dasharath Chunannavar, Ramappa Melavanki, Bhimappa -5- NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 Chigari, Manikant Maradi and Dastagir Mujawar, shifted the injured in a Cruiser vehicle owned by Mayappa Makali to Nimra Hospital, Gokak. There, the doctor advised them to take the injured to Ganga Hospital. In Ganga Hospital, it was advised by the doctor to take him to Gokak Government Hospital as he had sustained grievous injuries on his person. Accordingly, they shifted the injured to Gokak Government Hospital. There, the doctors gave first-aid treatment and advised them to take the injured to Belagavi Hospital. Accordingly, when they were shifting the injured to Belagavi Hospital, near RTO Circle, he succumbed to the injuries at 11.45 p.m. Thereafter, they shifted his dead body to their village and on 10.04.2021, the complainant filed complaint against the accused as per Ex.P1. Thus, the criminal law was set into motion.
3.5. On 10.04.2021, PW18-Shrishail Byakud, the then PSI of Ghataprabha Police Station, on information about murder of Laxman Tigadi rushed to the police station, by which time, CW22 had registered the crime in Crime -6- NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 No.82/2021 on the basis of compliant filed by the complainant and PW18 sent the FIR to the jurisdictional Magistrate, which is marked as per Ex.P19. This PW18 went to the scene of offence at 8.00 a.m., called the complainant and panchas and in their presence, prepared panchanama of the scene of occurrence as per Ex.P7, recovered M.O.1, 3, 4 and 5, prepared inquest panchanama in between 8.00 am and 9.00 a.m., as per Ex.P6, took photographs as per Ex.P2 to Ex.P4 and recorded the statement of the complainant and other witnesses.
3.6. He deputed his staff for apprehending the accused and on the said day itself, the accused was apprehended at 1.00 p.m. near Arabhavi Mutt and was produced before him. On interrogation, accused disclosed that, as his brother -Laxman did not perform his marriage and because of inability of his brother in performing the marriage of the accused, he killed Laxman. Thereafter, the accused was produced before the jurisdictional Court. After following procedures and completion of -7- NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 investigation by collecting necessary documents, PW18 filed charge sheet against the accused for the offence punishable under section 302 of IPC.
3.7. Before the Trial Court, to substantiate its case, the prosecution examined in all 18 witnesses as PW1 to PW18 and got marked documents as per Ex.P1 to Ex.P28 with respective signatures thereon and also got marked M.O.1 to M.O.5. No documents were marked on behalf of the defence.
3.8. The Trial Court, after closure of evidence having heard the arguments of both sides, on evaluation of oral and documentary evidence placed on record, answered Point No.1 and 2 in affirmative and found the accused guilty of committing offence under Section 302 of IPC, sentenced him "to undergo rigorous imprisonment for life and also imposed fine of Rs.1,00,000/- for the said offence with default sentence". The Trial Court also ordered to pay Rs.90,000/- out of fine total fine of Rs.1,00,000/- to the complainant as compensation as required under Section 357 of Cr.P.C., and remaining fine amount of -8- NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 Rs.10,000/- was ordered to be deposited to the Exchequer of the Government. Even it was observed by the Trial Court that the period of custody already undergone by the accused be given set off under Section 428 of Cr.P.C.
4. Being aggrieved by the said judgment of conviction and order of sentence passed by the Trial Court, the accused- appellant has preferred this appeal.
5. The learned counsel for the appellant-accused Sri.S.P.Kandagal, with all force submits that, the so called incident has taken place in the night hours. The very identification of the accused as a person who has committed the offence is not duly proved by the prosecution in accordance with law.
5.1. The learned counsel for the appellant further submits that, though PWs.4 to 10 are planted as eyewitnesses, infact the evidence of these witnesses cannot be believed. When prosecution relies upon the evidence of the eyewitnesses, such evidence must be above board -9- NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 and such evidence must be acceptable evidence. Evidence of PW6 cannot be accepted as she has given a clear goby with regard to she witnessing the alleged incident. Likewise, learned counsel for the appellant by relying upon the evidence of other witnesses submits that, all these witnesses are tutored witnesses. Even the doctor evidence is not conjunct. The Trial Court has not considered the evidence in proper perspective and it is without any proper appreciation of evidence. He submits that thereby, the defense of the accused that, deceased himself fell down and sustained injuries is more probable. The evidence of eyewitnesses is quite contrary to the case of the prosecution. Therefore, he submits that it is not safe to convict the accused. 5.2. According to his submission, the Trial Court has committed a grave error in not considering the material discrepancies in the evidence spoken to by the witnesses, which goes to the root of the prosecution's case. Whatever evidence led by the prosecution is not sufficient to hold the accused guilty of commission of
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 murder. It is his submission that, without any corroborative evidence and without appreciating the evidence in proper perspective, the Trial Court has wrongly passed the judgment of conviction and order of sentence against the accused. There is a delay in filing the complaint, which has not been properly explained by the complainant. In support of his submission, he relies upon various evidence spoken to by the witnesses and pointed out certain contradictions, according to him, which would basically shake the case of the prosecution. 5.3. It is his submission that, because of discrepant evidence adduced by the prosecution, the Trial Court is not right in convicting the accused. It is prayed by Sri.S.P.Kandagal, learned counsel for the appellant- accused to allow this appeal and acquit the accused by setting aside the impugned judgment.
6. As against this submission, Sri. M.B.Gundawade, learned Additional SPP for the State, countering the arguments of the learned counsel for the appellant, submits that the eyewitnesses have spoken about the assault on the
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 person of the deceased by the accused. The accused was grinding axe against the deceased on the ground that the deceased has not performed his marriage. Even prior to one month of the incident, the accused had told the resident of Sanganakeri that in case his brother Laxman fails to perform his marriage, then he is going to kill him. It is his further submission that the evidence spoken to by the witnesses duly establish the homicidal death of the deceased and also there are connecting links to establish that the accused is the perpetrator of the crime and his culpability in commission of offence is duly proved in accordance with law. It is his submission that, the Trial Court has evaluated the evidence spoken to by the witnesses, properly assessed the same and has rightly held that the accused is the perpetrator of the crime of murder of his own brother. Therefore, according to him, no interference is required into the judgment of conviction and order of sentence passed by the Trial Court.
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023
7. The learned Additional State Public Prosecutor submits that, so far as homicidal death of deceased is concerned, it is not in dispute. The defense so setup by the accused that, deceased himself fell down and sustained injuries cannot be accepted. It is his submission that, the trend of cross-examination directed to the witnesses proves that, defense admits the incident but denies the involvement of the accused in the commission of the crime. PW1 has spoken before the Court whatever she has heard about the incident. From the demeanor of PW1 shows that, she has given a natural evidence. Throughout the cross- examination no animosity or ill-will is established between the witnesses and accused.
7.1 He submits that, the postmortem report shows the deceased had not consumed any alcohol. Thereby he submits that, deceased by consuming alcohol fell down and sustained injuries is ruled out. It is his submission that, on reading the evidence led by the prosecution it is proved that the defence has not disputed the presence of the accused at the scene of occurrence at the relevant
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 time, injuries on the person of the deceased, the opinion of the doctor with regard to the injuries being corroborated by the evidence of the eye-witnesses and assault made by the accused. The witnesses so examined in this case are all the natural witnesses. That means, none of the witness is a chance witness. So also conduct of the accused before the incident and after the incident also plays an important role in understanding the prosecution's case. He submits that, the doctor has not noticed the presence of alcohol being consumed by the deceased. Therefore, he submits that, the judgment of conviction and order of sentence passed by the Trial Court is reasonable and cannot be interfered. Thus, it is prayed by the learned Additional SPP to dismiss the appeal.
8. We have given our anxious consideration to the arguments of both the sides and meticulously perused the records in depth.
9. In view of rival submissions of both the sides, the following points would arise for our consideration.
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023
i) Whether the impugned judgment passed by the Trial Court in finding the accused guilty is without properly assessing and evaluating the evidence and same suffers from infirmity?
ii) If so, whether the impugned judgment passed by the Trial Court requires interference by this Court?
iii) What order?
POINT NO. 1 AND 2 ARE DISCUSSED TOGETHER.
10. In a case of present nature, before discussing other aspects of the case, it is the bounden duty of the prosecution to prove homicidal death of Laxman Tigadi. Once homicidal death of the deceased is proved, then only question arises that whether is it the accused, who is perpetrator of the crime and is responsible for the death of deceased-Laxman.
11. To prove homicidal death of the deceased, the prosecution relies upon the contents of Ex.P1-complaint. On reading the complaint averments, evidently the complainant, who is the wife of the deceased, is not an eyewitness to the incident. She rushed to the spot on
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 getting information through telephone by her sister- Savakka stating that her husband-Laxman was assaulted by the accused with a stone on his head and face due to which he sustained grievous injuries. According to the averments of the complaint, on hearing the said news, the complainant along with her son-in-law by name Manjunath came to the spot and noticed that her husband-Laxman had sustained injuries on his head and face. He was still alive but was not able to speak. Initially, they shifted the injured-Laxman to Gokak hospital and after getting first-aid, as per the advice of the doctors, the injured was being taken to Belagavi Hospital, but on the way to hospital he died. This fact of death of the deceased due to injuries being sustained by him is not denied by the defence. So also the investigating officer has prepared inquest panchanama as per Ex.P6, which shows the injuries that were sustained by the deceased. Coupled with this, the prosecution relied upon Ex.P10-Postmortem Report, which shows the number of injuries sustained by the deceased. It was
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 opined by the doctor that because of the said injuries, he died. The panchas to the inquest panchanama coupled with other evidence placed on record by the prosecution, do establish that it was homicidal death and it is not disputed by the defence. Therefore, it can very well be stated that the deceased died homicidal death. The documents placed on record by the prosecution also prove the same.
12. To prove the culpability of committing crime by the accused, the prosecution has relied upon various evidences placed on record. Amongst the evidence placed on record, evidently PW1-Renuka Tigadi, the wife of the deceased, came to the scene of offence only after getting information from her sister-Savakka through telephone stating that her husband-Laxman was assaulted by the accused by using a stone. When she came to the spot of the incident at 9.30 p.m., she noticed injuries on the head of her husband, who was in semi-conscious and was unable to speak. The witnesses, who were present there,
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 told her that accused assaulted the deceased by throwing a stone on his head.
12.1. With regard to the said incident of causing murder of the deceased by the accused, she lodged complaint as per Ex.P1. According to complaint averments, the motive of the accused to commit murder of the deceased was that the deceased being brother of the accused has not performed his marriage. Therefore, the accused was grinding axe against his brother. Even the accused had stated before one Dasharath Chunannavar that if the deceased do not perform his marriage, he is going to kill him.
12.2. This PW1 has identified the stone as well as clothes worn by the deceased at the time of the incident as per M.O.1 to 3. Even she identifies the photographs snapped as per Ex.P2 to 5. PW1 is consistent in her evidence about the motive of the accused for committing the crime and also she noticing injuries on the person of her husband. She also speaks about the death of the deceased on the way to hospital because of the injuries
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 being sustained by him on account of assault made by the accused.
12.3. PW1 was cross-examined by the defence at length. It is the defence of the accused that for the last two years prior to the said incident the accused has not visited Sanganakeri village and used to stay somewhere. It is brought on record that at Sanganakeri village, at that point of time, a new concrete road was constructed by the authorities concerned and there were streetlights burning. She admits that the said streetlights are situated at a distance and stones cannot be seen in the street lights. She states that on the date of the incident, it was not difficult for her to go to police station to lodge a complaint. For the question of the defence, that why she did not lodge complaint on the date of the incident? She answered that as they were scared of the said incident, she did not go to the police station to lodge complaint on the date of the incident.
12.4. It is her evidence that in between Sanganakeri village and Ghataprabha, there is a distance of 3-4 km. She
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 states that herself, Suresh and other witnesses had gone to the police station to lodge the complaint and there one Muslim boy wrote the complaint. It was suggested to her that whether she knew the contents of the complaint? For this question, she has given positive answer. According to her, she herself had given information to write the complaint. Though she has been cross-examined by the defence at length, but nothing worth is elicited so as to disbelieve her evidence given in her examination-in-chief.
13. PW2-Basavaraj Hanumasagar is a pancha to inquest panchanama and scene of offence panchanama. According to him, he was very much present when Ex.P6- inquest panchanama and Ex.P7-scene of occurrence panchanama were prepared by the investigating officer. He states that Ex.P8-sketch was also prepared by the police and M.O.1 was also seized in his presence. He has identified Ex.P5-photograph. He has been treated as partly hostile to some extent but throughout his evidence, this witness is consistent that he was very
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 much present when inquest panchanama, scene of offence panchanama and sketch were prepared by the investigating officer.
14. PW3, being another inquest pancha also speaks in line with the evidence of PW2. To disbelieve the version of evidence spoken to by PW2 and PW3, though extensive cross-examination is directed to them, but they have withstood the test of cross-examination. The panchanamas are duly proved from the evidence of these two witnesses and also PW1.
15. PW4-Dasharath Chunannavar, PW5-Hanamanth Kandari, PW6-Savakka Rangappa Patil, PW7-Ramappa Nagappa Melavanki, PW8-Dastagir Mujawar, PW9-Manikant Mardi, PW10-Yallavva Chunannavar are branded as eyewitnesses to the incident by the prosecution. It is the evidence of PW4 that, on 09.04.2021 at 9.00 p.m., when deceased-Laxman was standing near his house, near a borewell, the accused came there and asked him that why he has not performed his marriage. By saying so, he took a stone and assaulted on the head of the deceased.
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 This PW4 tried to rescue Laxman from the hands of the accused, but even then the accused assaulted the deceased. This PW4, Savakka, Ramappa Melavanki and other witnesses rescued Laxman, but due to the assault on him made by the accused, he sustained grievous injuries on his head and lost consciousness. 15.1. This witness also speaks that, the complainant had been to Sattigeri for the purpose of delivery of her daughter and she was informed about the incident through telephone. He also states that after the incident, injured-Laxman was shifted to Nimra hospital Gokak and thereafter to Civil Hospital where he was given first-aid treatment and there, he was advised to be taken to Belagavi hospital. But on the way to Belagavi Hospital, he died. This PW4 has been thoroughly cross-examined by the defence, but nothing worth is elicited so as disbelieve his version given in his examination-in-chief. Except denial in the cross-examination, nothing worth is elicited.
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 15.2. The trend of cross-examination is worth reading and supports the case of the prosecution. With regard to said galata it was suggested to this witness that, the galata had started in between 6.00 p.m. and 6.30 p.m. on the date of the incident. This witness was unable to say the time of the said galata. According to him, the said galata started at 9.00 p.m. That means the presence of the accused at Sanganakeri on that particular day of the incident is admitted by the defence. Though it is suggested to PW1 that for the last two years prior to the date of incident, the accused did not visit Sanganakeri village, the suggestion of galata taking place at 6.00 p.m., directed by the defence to PW4 falsifies the defence of the accused. It is consistent evidence of PW4 that, by using stone the accused assaulted the deceased on his head.
15.3. One more defence has been set up by the defence, that on the date of the incident, at Sanganakeri village there was non-veg party and deceased-Laxman by consuming alcohol and having non-veg dinner was
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 unable to control himself and fell down on a concrete road, suffered grievous injuries on his head and died. But this suggestion directed to PW4 is denied by him.
16. Likewise, PW5 also speaks in material particulars as that of the evidence of PW4. This PW5 admits that, at Sanganakeri village, a new concrete road was constructed by the authorities. According to his evidence, he noticed injuries on the waist of deceased-Laxman. He admits that, in their village such stones are lying by the side of the road etc., So this suggestion directed to PW5 goes against the defence of the accused.
17. PW6-Savakka Patil, being an eyewitness was the person, who informed her sister-PW1 about the said incident. According to her evidence, at 9.00 p.m. on the date of the incident, she noticed quarrel between deceased and the accused. The accused took a stone and assaulted deceased-Laxman on his head due to which he sustained injuries. She states that, on the said day, the complainant had been to Sattigeri for the purpose of delivery of her daughter. After ten minutes of she calling
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 the complainant on telephone, the complainant came to the spot. According to this witness, on the next day at 12.00 in the noon, the dead body of the deceased was brought to the village. Though PW6 is cross-examined extensively by the defence, she has withstood the test of cross-examination.
18. PW7-Ramappa Melavanki speaks in similar words with that of the evidence of PW4 and PW6. He is also an eyewitness to the incident. He is consistent that there was a quarrel between the accused and the deceased, the accused was abusing the deceased stating that he has not performed his marriage. The accused by taking a stone assaulted Laxman on his head causing grievous injuries.
19. PW8-Dastagir Mujawar is also an eyewitness. He too speaks in line with the evidence of PW4 to PW7. This witness states that he has not seen the quarrel with his own eyes. When he saw the deceased, the deceased had already lying on the ground with injuries. So the evidence of PW8 can be accepted to the extent he noticing the
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 deceased lying on the ground because of injuries sustained by him. He admits that the deceased and accused both used to consume alcohol.
20. PW9-Manikant Maradi being another eyewitness speaks about he noticing the quarrel between accused and the deceased and states that the accused assaulted the deceased on his head by using a stone. According to his evidence, when the said incident took place, he was sitting by the side of borewell. According to him, quarrel between the accused and the deceased was common. He states that he noticed the incident in the streetlight.
21. PW10-Yallavva Chunannavar also speaks in similar lines with that of evidence of PW9. According to this witness, she has not tried to rescue the deceased and on hearing the sound of galata, she came out of the house and noticed injuries on the person of the deceased. It is suggested to this witness that, when she came out of her house, the accused was already ran away from the place of incident. This suggestion directed to this witness goes
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 against the defence that, the accused was not in the village on the date of the incident.
22. On reading the evidence of all the eyewitnesses i.e. PW4 to PW10 examined by the prosecution, their evidence do establish the fact that, they were very much present at the spot of the incident, when the incident took place and deceased had sustained grievous injuries on his vital part of the body i.e. head and face. To disbelieve the evidence of these witnesses, except denial in the cross- examination, nothing worth is elicited from their mouth. These witnesses have withstood the test of cross- examination.
23. PW11-Liyakat Avate, being contractor has written the Ex.P1-complaint as per the instructions given by the complainant. The scribing of Ex.P1-complaint is not denied by the defence.
24. PW12-Dr.Jagadeesh Jingi was working as a Senior Specialist at Government Hospital Gokak, at the relevant time. He deposed that on 10.04.2021, on requisition of
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 Ghataprabha Police, he conducted post-mortem examination on the dead body of the deceased between 11.00 a.m. and 12.00 p.m. in Mortuary of Government Hospital at Gokak. He noticed following injuries on the person of the deceased:
The following external injuries were noted:
1. Contusion wound of size 6X6 C.Ms on right frontal above right eyebrow.
2. Cut lacerated wound of size 4X4X2 C.Ms on the left temporoparietal region.
3. Cut lacerated wound of size 6X4X4 C.Ms on upper half of occipital area.
On dissection of the body, I have observed the following injuries:-
1) External haemorrhage on the left tempo occipital region.
2) Fracture of skull left temporoparietal bone (Depressed fracture)
3) Brain was congested and there was intra cerebral bleeding present in left part of the brain.
4) Membrane ruptured.
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023
25. According to PW12, the aforesaid injuries were the cause of death of the deceased. Accordingly, he issued post- mortem report. He has been thoroughly cross-examined by the defence, but he is firm in his evidence about the injuries sustained by the deceased. He states that he has given opinion regarding cause of death in Ex.P11. He identifies M.O.1 and opined that the injuries noted in the post-mortem report can be caused by the use of M.O.1- stone.
26. It is argued by the learned counsel for the appellant-
accused Shri. S.P.Kandagal that, deceased was drunker and by consuming alcohol he must have fallen down and because of that, had sustained injuries and died. As per the case of the prosecution, the said incident of assault on the person of the deceased has taken place on 09.04.2021 in between 9.00 p.m. and 9.30 p.m. On 10.04.2021 at 6.00 a.m. complaint was lodged. The Investigating Officer after conducting the inquest panchanama sent the dead body for conducting post- mortem which was received by the hospital authorities at
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 10.56 a.m. on 10.04.2021 itself. The post-mortem was conducted in between 11.00 a.m. and 12.00 noon on 10.04.2021. The Post-mortem Report shows that, in some of the contents of the said report it is noticed by the doctor about digested food. It has come in the evidence of doctor that he has not examined the dead body with regard to the consumption of alcohol. However, if really the deceased had consumed alcohol before his dinner on the previous day, the food so consumed by the deceased would have contained the smell of alcohol. That must have been mentioned by the doctor, who conducted the post-mortem. But, Ex.P.10 the P.M. Report is very much silent about the same. Even the doctor has stated about the cause of death as a final opinion because of the injuries sustained by the deceased.
26.1 Further, it is written in the P.M. Report as to cause of death as "after completion of both external and internal postmortem examination of the whole body, I am of the opinion that the cause of death is hemorrhage shock
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 following bleeding from major organ brain and lungs following assault by blunt object."
26.2 Even doctor has weighed the said M.O. No.1- bloodstained stone which was weighing 4 k.gs. alleged to have been used by the accused in committing the crime. Where exactly the scene of offence is situated is proved, as per the contents of sketch Ex.P.4. So, these factors prove the case of the prosecution and believe the defense of the accused. Except denial nothing worth is brought on record by the defence in his cross-examination to disbelieve his evidence.
27. PW13-Maruti Uppar, the Assistant Engineer, was the person who prepared sketch of the place of incident as per Ex.P12 at the request of the police. The contents of Ex.P12-sketch are not denied by the defence.
28. PW14-Shrishail Kadam is the assistant Engineer, who has issued certificate as per Ex.P13 to show that in between 9.00 p.m. and 10.00 p.m. on 09.04.2021, there was electricity supply at the place of incident. It is the case of
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 the prosecution that, the incident has taken place in a street, where streetlights were burning and the eyewitnesses i.e. PW4 to PW10, who are the residents of Sanganakeri village, were present have witnessed the incident. It has come in the evidence of all the witnesses that, the accused frequently used to quarrel with his brother deceased-Laxman to perform his marriage and even prior to one month of the incident, he had told the resident of Sanganakeri that in case his brother-Laxman do not perform his marriage, then he is going to kill him. This has come in the evidence of the witnesses.
29. All the eyewitnesses had knowledge of frequent quarrels in between accused and the deceased. If that is so, when the said incident has taken place during night hours in the light of streetlights, PW4 to PW10 were able to see the said quarrel between the accused and deceased and they have witnessed quarrel and deposed regarding the same in their evidence that it was the accused, who assaulted the deceased by using M.O.1-stone, on the date of the incident.
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023
30. On going through the photographs of M.O.1-stone, they show that the said stone can be lifted by one hand and even the weight of the stone is mentioned in the panchanama. So if all these factual features are put together with the evidence of PW14 shows that there was power supply on the date of the incident in between 9.00 p.m. and 10.00 p.m. and these eyewitnesses have seen the incident with their own eyes. They have consistently spoken before the Court what they saw on the date of the incident. They have spoken in their evidence with regard to assault made by the accused on the person of deceased by use of M.O.1-Stone. Throughout their evidence, they are consistent. The evidence of PW14 is also corroborative with the evidence of other witnesses that there was no power cut at the time of the alleged incident and streetlights were burning.
31. PW15-Raju Padatari was police constable at Ghataprabha Police Station at the relevant time. He took the dead body of the deceased to hospital for the purpose of post- mortem and after post-mortem he handed over the same
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 to the legal heirs of the deceased and submitted report as per Ex.P14. He also produced M.O.1, 3, 4 and 5 before the investigating officer. No effective cross-examination is directed to this witness.
32. PW16-Basavaraj Hubballi is a photographer, who snapped Ex.P2 to 5 photographs in his mobile. He has identified them in his evidence. In the cross-examination, these photographs were not denied by the defence.
33. PW17-Raju Holakar was head-constable at the relevant time. As per directions of his superior officer, he visited the scene of offence, conducted inquest panchanama as per Ex.P6, took photographs as per Ex.P2 to 5, conducted scene of offence panchanama as per Ex.P7 and prepared sketch as per Ex.P8. Though he has been extensively cross-examined, but nothing worth is elicited from his mouth.
34. PW18-Shrishail Byakud was the Police Inspector at the relevant time. He conducted investigation and filed charge sheet against the accused. Though he has been
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 extensively cross-examined but nothing worth is elicited from his mouth and he has stated about the official role being played by him with regard to investigation.
35. Thus, on scrupulous reading of entire evidence placed on record by the prosecution, the evidence of PW4 to PW10, who are eyewitnesses, clinchingly establish that it was the accused who has committed the murder of his own brother-Laxman. PW1, PW6 and PW9 have spoken about the ill-will between accused and the deceased. The accused repeatedly used to pick up quarrel with his brother-Laxman stating that why he is not performing his marriage. Keeping in mind the said grudge, the accused committed murder of his brother-Laxman. The testimony of all the witnesses i.e. PW4, PW6, PW9 and PW10 is corroborative with each other. They are the neighbours, who knew the activities of the accused as well as deceased.
36. In addition to that, the other neighbours i.e. PW5, PW7 and PW8 have also spoken before the Court against the accused. M.O.1 is identified as a weapon used by the
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 accused in the commission of the crime. Though extensive cross-examination is directed to all the above witnesses, no material contradictions or discrepancies are found in their evidence. It is quite natural in villages that, after having dinner, some villagers come and sit out of their house. At the time of the incident, these witnesses have noticed the quarrel between the deceased and the accused. They are all neighbors who tried to rescue the deceased from the clutches of the accused, but the accused assaulted the deceased with M.O.1 and thereby caused grievous injuries on vital part of his body. The attempt of rescuing the deceased by the witnesses is not denied by the defence. The presence of the accused at the place of incident at that point of time is duly proved from the evidence of these witnesses.
37. The trend of cross-examination directed to these witnesses show that the defence itself has perfected the case of the prosecution. If that is so, the Trial Court is right in coming to the conclusion that the eyewitnesses stated supra have seen the said incident and though
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 there are some minor contradictions in the evidence of these witnesses, it is not the case of the defence that, there was no sufficient light and the eyewitnesses could not see the incident etc., All the eyewitnesses have consistently stated about they witnessing the said incident. It is a rural area where the incident has taken place and the eyewitnesses have spoken in line with whatever they saw when the incident has taken place. Therefore, on appreciating the evidence of eyewitnesses stated supra and other circumstances evidence brought on record by the prosecution, as rightly observed by the Trial Court, the accused is the perpetrator of the crime and his culpability in committing the crime is duly proved in accordance with law.
38. If all these factual features are put together, it can be said that the deceased suffered homicidal death and the accused has assaulted him with an intention to commit murder by using M.O.1-stone. Even the testimony of eyewitnesses and other witnesses brought on record show the culpability of the accused in the commission of
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 the crime. Therefore, we do not find any factual or legal error in the judgment of conviction and order of sentence imposed by the Trial Court as prescribed under the provisions of Section 302 of IPC. The appellant-accused has utterly failed to prove that there is no proper appreciation of evidence by the Trial Court in finding him guilty of committing the offence of murder.
39. Section 3 of the Indian Evidence Act says how the Courts have to appreciate the evidence on record. The Trial Court has appreciated the evidence on record in accordance with law and as per the provisions of Section 3 of the Indian Evidence Act. Therefore, the points raised are required to be answered against the appellant- accused and in favour of the prosecution and they are answered accordingly.
40. In view of our discussions made above, the appeal filed by the appellant fails and is liable to be dismissed. Resultantly we pass the following:
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NC: 2024:KHC-D:6870-DB CRL.A No. 100250 of 2023 ORDER i. The appeal filed by the appellant-accused under Section 374(2) of Cr.P.C., is hereby dismissed.
ii. The judgment of conviction and order of
sentence passed by the XII Additional
Sessions Judge, Belagavi, sitting at Gokak, in S.C.No.8028/2021 is hereby confirmed.
iii. Send back the Trial Court Records along with copy of this judgment for compliance.
iv. Intimate operative portion of the order to the Trial Court through email forthwith.
Sd/-
JUDGE Sd/-
JUDGE YAN List No.: 1 Sl No.: 3