Vithal S/O Veerappa Varadi vs The State Of Karnataka
2021 Latest Caselaw 5382 Kant

        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

 DATED THIS THE 03RD DAY OF DECEMBER, 2021

                     BEFORE

    THE HON'BLE MRS.JUSTICE M.G.UMA

             CRL.A.NO.2742/2013
BETWEEN :

VITHAL S/O VEERAPPA VARADI
AGE: 35 YEARS, OCC: AGRICULTURE
R/O GALAGIHULAKOPPA, TQ: KALAGHATAGI
DIST: DHARWAD.
                                       .... PETITIONER
(BY SRI. V.G.BHAT, ADVOCATE)

AND :

THE STATE OF KARNATAKA
R/BY SPECIAL PUBLIC PROSECUTOR,
HIGH COURT CIRCUIT BENCH, DHARWAD.
                                 .... RESPONDENT

(BY SRI.PRAVEEN K.UPPAR, HCGP)

     THIS APPEAL IS FILED UNDER SECTION 374 (2) OF
THE CODE OF CRIMINAL PROCEDURE SEEKING TO SET
ASIDE THE ORDER DATED 20.07.2013 AND 22.07.2013
RESPECTIVELY IN SESSIONS CASE NO.156/2012 PASSED
BY THE LEARNED PRINCIPAL DISTRICT AND SESSIONS
JUDGE, AT DHARWAD, IN THE ENDS OF JUSTICE.

    THIS  APPEAL  COMING   ON  FOR  FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                            2




                   : JUDGMENT :

Accused is impugning the judgment of conviction

and order of sentence dated 20.07.2013 passed in

S.C.No.156/2012 on the file of Prl. District and

Sessions Judge at Dharwad, where under accused was

convicted for the offence punishable under Section

451 of Indian Penal Code (for short 'IPC') and

sentenced to undergo rigorous imprisonment for a

period of six months and to pay a fine of Rs.1,000/- in

default, he has to undergo simple imprisonment for a

period of one month; for the offence punishable under

Section 435 of IPC, he is sentenced to undergo

rigorous imprisonment for a period of one year and to

pay a fine of Rs.1,000/- in default, he has to undergo

simple imprisonment for a period of two months; and

for the offence punishable under Section 307 of IPC,

he is sentenced to undergo rigorous imprisonment for

a period of three years and to pay a fine of Rs.3,000/-

in default, he has to undergo simple imprisonment for

a period of three months. He also ordered to pay

compensation of Rs.10,000/- to the victim PW2-

Shobha within one month from the date of this order.

2. Brief facts of the case are that, the

informant-Shivaji lodged the first information against

the accused for having committed the above said

offences, which was registered in Crime No.192/2011

of Kalaghatagi Police Station. After investigation, the

charge sheet was came to be filed against the

accused for the offences punishable under Section

307, 451 and 436 of IPC. Prosecution examined

PWs.1 to 15, got marked Exs.P1 to 21 and identified

MOs.1 to 7 in support of its contention. The accused

denied all the incriminating materials available on

record. But has not chosen to lead any evidence in

support of his defence. However, Exs.D1 to 7 are

marked during the cross-examination of the

prosecution witnesses. The trial Court after taking into

consideration all these materials on record, came to

the conclusion that the prosecution is successful in

proving the guilt of the accused for the offences

punishable under Section 451, 435 and 308 of IPC

and accordingly convicted and sentenced him, as

stated above.

3. The accused is impugning the said

judgment of conviction and order of sentence before

this Court.

4. Heard learned Counsel Sri.V.G.Bhat, for

appellant and learned HCGP Sri.Praveen.K.Uppar., for

respondent-State.

5. Learned counsel for the appellant

submitted that the prosecution has failed to prove the

guilt of the accused beyond reasonable doubt. PW1 is

the informant. But he is not an eye witness. His

evidence cannot be believed, as he is a hearsay

witness. PW2 is the victim, who states that she had

not seen the accused when he came inside the house.

He has stated that immediately she lost her

consciousness. PW3 is the grandmother. She also

states that she was near the front door of the house

and she had not seen the accused gaining entry into

the house through the backdoor. By the time she

came to the spot there were nobody and thus the

evidence of PW3 is also not helpful to the case of the

prosecution. Moreover, no ill-will or enmity is

suggested against the accused to commit such an act.

The ill-will suggested against the family members of

the accused with the father of the victim that was

about 7-8 years earlier to the incident, cannot be a

ground to allege that the accused was having the

motive or an intention to commit the offence. Learned

counsel further submitted that PW4 has categorically

admitted Ex.D3 and 4. According to which, the victim

attempted to commit suicide and it is a case of self

hanging. Under such circumstances, no amount of

evidence would assist the prosecution in proving the

guilt of the accused. The evidence of PWs.11 and 15

is also against the case made out by the prosecution

and it is inconsistent with the same. Therefore, the

prosecution has not proved the motive for the

accused to commit the offence and also the

commission of the offence by the accused. The trial

Court ignored all these facts and proceeded to convict

the accused without any basis. Therefore, the

impugned judgment of conviction and order of

sentence passed by the trial Court is liable to be set-

aside. Accordingly, he prays for allowing the appeal.

6. Learned HCGP opposing the appeal

submitted that serious allegations are made against

the accused for having committed the offence. PW.1

is the first informant, who lodged the first information

immediately after the incident. He narrates the past

history of the accused and also the motive for him to

commit the offence. PW2 is the victim herself, who

categorically states regarding commission of the

offence by the accused. PW3 is the grandmother, who

is an eyewitness to the incident and entered the

house at the time when the accused was committing

the offence and on seeing PW3, accused had ran away

from the scene of occurrence. PW5 and 6 are the

neighbors, who are circumstantial witnesses. PW4 is

the staff nurse, who first treated the victim and PW11

is the doctor in the very same PHC. Both the

witnesses have spoken about Ex.P9 and Ex.D4. PW15

is the doctor, who treated the victim in the District

Hospital, where she was admitted as an inpatient. The

medical evidence is consistent with the case made out

by the prosecution. There are no reasons to hold that

the prosecution failed to prove the guilt of the

accused. The trial Court considered all these materials

on record and proceeded to convict the accused for

the above said offences. There are no reasons to

interfere with the finding of the trial Court. Hence, he

prays for dismissal of the appeal as divide of merits.

7. Perused the materials on record.

8. The point that would arise for consideration

of this Court is as under:

"Whether the impugned judgment of conviction and order of sentence passed by the learned Prl.District and Sessions Judge, Dharwad in Sessions Case No.156/2012, is liable to be set-aside?"

9. My answer to the above is in the 'partly

affirmative' for the following:

: REASONS :

10. It is the contention of prosecution that the

accused trespassed into the house of PW3 with an

intention to cause mischief by setting fire and set fire

to the plastic tub, pot, etc., and also attempted to

cause murder of PW2 by hanging her to the beam and

thereby committed offences punishable under

Sections 435, 451 and 307 of IPC. It is stated that

accused No.1 committed offence on 11.10.2011 at

3:00 p.m and first information was lodged by PW1 on

the same day at 11:00 p.m.

11. To prove the contention of the prosecution,

it has examined PW1-informant himself. This witness

is not an eye witness. But he came to know about the

incident from the victim and the eye witness and he

lodged the first information as per Ex.P1. This witness

was cross-examined at length by the learned counsel

for the accused. But nothing has been elicited from

him to disbelieve his version. Witness stated that the

accused set fire inside the house. The rafter was burnt

a little. But admitted that such damage caused to the

rafter is not seen in Ex.P2.

12. PW2 is the victim herself. Witness stated

that about a month after 06.08.2010 and on

06.10.2010, there was fire in her house and the same

was informed by her to PW.1. Again on 11.10.2011 in

the afternoon, accused gained entry into the house

illegally, gagged her mouth by putting the cloth inside

her mouth and criminally intimidated to cause her

death by pouring kerosene. He tied her neck with a

saree and poured kerosene on the house hold articles,

which was kept therein. Immediately, her child

started crying. On hearing the cry, PW.3, who is her

grandmother came running inside the house and cut

and removed the ligature material with a sickle. She

also raised hue and cry and the victim was taken to

the hospital. She identified the cloth that was used to

hang her. Witness also identified the cloth that was

used for gagging her mouth and the ½ burnt plastic

tub, which are as per MOs.1 to 4.

13. During cross-examination by the learned

counsel for the accused, witness stated that she was

not conscious when she was first brought to the

hospital. After taking her to the hospital, she regained

consciousness and noticed that the police have came

there. She informed about the incident to the police.

On the next day, she went to the Dharwad Civil

hospital, where she took treatment for about 5 days.

Witness stated that she had not sustained any bodily

injuries. But there was swelling on her neck. Witness

further stated that when the accused gained entry

from the back door, PW.3 was on the front side of the

door washing the cloths. The accused had tied both

her hands but she had not sustained any injuries but

there was swelling. Witness stated that on seeing the

accused, she had not tried to run away from the spot,

as she had undergone surgery few days earlier and

was not in a position to run. She lost her

consciousness when the ligature material was cut by

PW.3, who was aged 75-80 years. Witness denied the

suggestion that she had not stated in her evidence

that accused threatened her or causing her death by

setting fire after pouring kerosene. She denied the

suggestion that since there was ill-will and motive

against the accused and his family members, a false

complaint was came to be filed and that she is

deposing falsely.

14. PW.3 is the grandmother of PW.2 who is

cited an eye witness. Witness identified the accused

and stated that on the date of incident, the accused

had trespassed into the house and tied the curtains to

her neck, of the victim and gagged in her mouth with

clothes. The child of the victim started crying and

immediately she came inside the house. By that time,

the accused had hanging the victim and on seeing

her, accused ran away. At that time, he had already

set fire to a tub. She extinguished the fire and cut the

ligature with the sickle. When she raised hue and cry,

one Shavakka and Seetavva have came to the spot.

The injured was taken to hospital.

15. During the cross-examination, witness

denied the suggestion that there was ill-will between

her and the family members of the accused. She

stated that about 10-12 years back, her son-

Devendra and brother of the accused have quarreled

and a complaint was registered in Galagihulakoppa

police station. Thereafter there was no difference of

opinion or Galata between two. Witness stated that on

hearing cry of the child, she came rushing to the

house. When she cut the ligature with the sickle, the

victim lost her consciousness. By that time, the

accused had hanged the victim to the rafter. She

removed the cloth from the mouth of the victim and

thereafter she was taken to hospital. Witness stated

that a saree was used as a curtain in her house and

the same was used by the accused to hang the victim.

She denied the suggestion that she is deposing falsely

against the accused.

16. PW4 is the staff nurse in the government

hospital at Galagihulkoppa. Witness stated that on

10.11.2011 at 3:50 p.m PW2 had came to the

hospital complaining pain in her neck. PW1 and one

Hemantagouda Patil have accompanied her. They

inform that the injured was hanged with a saree.

Since the doctor was not in the hospital, she sought

his advice and gave tablets. The injured had not given

any history, as she has not spoken anything. Witness

stated that she informed the police regarding the

injured coming to the hospital. As the witness has not

fully supported the case of prosecution, she was

treated partially hostile and she was cross-examined

by the learned public prosecutor. Witness admitted

that she had examined the witness on 11.10.2011.

But by mistake she had stated that she had examined

her on 13.10.2011. She also admitted after giving

first aid the victim was sent to KIMS hospital.

17. During the cross-examination by the

learned counsel for the accused witness stated that

only on 11.10.2011 she treated the victim girl. She

had not treated the case as MLC. She had not noticed

any injuries on the neck of the victim. Witness stated

that she had only checked the pulse and B.P. At that

time, the victim was weeping. Witness admitted the

documents, which is marked as Exs.D3 and 4.

18. PW11 is the medical officer in the primary

health center at Galagihulkoppa. Witness stated that

on 13.10.2011, the victim had came to the PHC with a

history of assault and attempt strangulation. She

complained of swelling in the neck as well as

discomfort in breathing. Therefore, the victim was

referred to ENT specialist. The victim was not in a

position to speak and therefore, he instructed the

nurse to take history from the other person. Ex.P8 is

the MLC register, OPD chit is Ex.P9, wound certificate

is as per the Ex.P10.

19. This witness was cross-examined by

learned counsel for the accused. Witness stated that

PW2 had come to his hospital on 13.10.2011. Witness

stated that he had not mentioned regarding swelling

in the neck in the wound certificate as he had not

noticed the swelling but victim was complaining of

such swelling. He gave intimation to the police about

the case on the same day. He denied the suggestion

that the victim had never came to MLC on

11.10.2011.

20. PW15 is the doctor in the district hospital,

Dharwad working as Senior Specialist. Witness stated

that on 12.11.2011, the victim had came to the

hospital with a history of pain in the throat and

difficulty in swelling and in moving the neck. She gave

history of the injured that on 11.10.2011 at 2:30 p.m

the neighbor had assaulted her by tying saree around

her neck and tried to strangulate her. She took

treatment initially at PHC Galagihulkoppa, who

referred the injured to the District hospital. She was

admitted in the hospital on 12.10.2011 till

15.10.2011. On 12.10.2011 at 3:30 p.m the ENT

surgeon had examined her and noticed the laryngeal

oedema and advised her to go endoscopic evaluation

in KIMS hospital, Hubli. But the patient refused to go

to KIMS hospital. X-ray of the neck was taken and the

injured was put on mediation. The victim had

sustained grievous injuries, which was caused by

blunt trauma. Accordingly, he issued Ex.P17. He had

given his opinion that the injury caused to the injured

could have caused by hanging with a saree. The

opinion is as per Ex.P18, the case sheet as per Ex.P20

and the X-ray report as per Ex.P21.

21. The witness was cross-examined by the

learned counsel for the accused. The witness stated

that the injured herself had given history. Witness

stated that as per the referring chit of PHC

Galagihulkoppa it is mentioned as it is a case of

suicide. The said chit is as per Ex.P20(a). Witness

admitted that there is difference between hanging and

strangulation.

22. Ex.P.2 and 4 are the photos of the scene of

occurrence where cut ligature hanging from the rafter

is seen. Ex.P5 is the spot panchanama drawn at the

scene of occurrence. Again there is reference to cut

ligature hanging from the rafter, ½ burnt, fire, etc.,

Ex.P9 is the outpatient chit issued by PHC,

Galagihulkoppa dated 11.10.2011 issued in the name

of the victim-PW2. As per this document, the victim

had accompanied by Mr.Shivaji Kadam-PW1 and

Mr.Hanumantagowda Patil of Galagihulkoppa village

with a history of attempting homicide by hanging on

11.10.2011 at about 2:30 p.m in her house. As per

the history, the face of the injured was covered with a

towel from backside while she was feeding her baby.

She was pulled towards the door and tried to

strangulate with a curtain/saree material around her

neck. She was breathless for a while. She was no

history of loss of consciousness, any

injury/wound/fracture, abnormal behavior after the

incident. Ex.P10 is the wound certificate relating to

PW2 issued by medical officer, Galagihulkoppa.

According to this document, there was external

injuries found and the victim was referred to ENT

surgeon in KIMS hospital. Ex.P17 is the wound

certificate issued by the Senior specialist, District

hospital, Dharwad. According to which, the injured

was examined on 12.10.2011, who was accompanied

by a police constable. The injured complained of pain

at the throat, neck movement was painful. X-ray was

taken with no abnormality. The injury was of grievous

nature, could be caused by blunt force.

23. Ex.D1 and 2 are got marked during the

cross-examination of the prosecution witnesses i.e.,

portions of the statement of PW1, which are not of

much importance. Ex.D.3 is the letter issued by the

investigating officer to the medical officer, PHC,

Galagihulkoppa requesting to provide the wound

certificate. Ex.D4 is the copy of Ex.P9.

24. When the accused was examined under

Section 313 of Cr.P.C referring to the incriminating

materials that are available on record, witness denied

all those incriminating materials and only stated that

he was in the field on full moon day. He has not

committed any offence and a false complaint was

lodged against him.

25. Relying on Ex.P9, copy of which is marked

as per Ex.D4. Learned counsel for the appellant

contended that it is a clear case of suicide by the

victim. There are no materials supporting such

contention. On perusal of Ex.P9 and Ex.D4 it is

mentioned therein that the victim was brought with

the history of attempted homicide by hanging on

11.10.2011 at about 2:30 p.m at the home at

Galagihulkoppa. As per the history, her face was

covered by the towel from backside, while feeding her

baby and was pulled towards the door frame (hanging

site), is a door curtain (saree material) was pressed

around her neck and pulled. She was breathless for a

while. She was no history of loss of consciousness,

any injury/wound/fracture, abnormal behavior after

the incident. by no stretch of imagination, these

description could be related to attempt on the part of

the victim to hang herself.

26. The tenure of cross-examination of the

witness on the basis of Ex.P9 and Ex.D4 is that the

victim herself attempted to commit suicide by hanging

and sustained injury. But the document Ex.P9/Ex.D4

categorically mentions that it was an attempted

homicide by hanging as stated above. Moreover,

there is no such cross-examination to either P.W.1 or

P.W.2 or P.W.3 to substantiate such contention. The

evidence of these material witnesses in the light of

the material document they are highlighted above,

disclose that the witnesses have corroborated one

another and supported the case of prosecution, in all

materials particulars. In spite of searching cross-

examination by the learned counsel for the accused,

nothing has been elicited from any of the witnesses to

disbelieve their version or to discard the contention of

the prosecution. PW2 being the victim and PW3 being

the eye witness have consistently corroborated the

case of the prosecution and their say is supported by

Exs.P9 and 17 i.e., medical certificates. The spot

mahazar, which is as per Ex.P5 disclose the situation

at the scene of occurrence immediately after the

incident.

27. Even though an attempt was made during

cross-examination of the material witness including

PW1 to contend that there was ill-will between two

families and therefore, a false complaint was came to

be filed, nothing could be elicited from them in

support of the same. A prompt lodging of the first

information immediately after the incident supports

the contention of the prosecution. The evidence of

PWs.2 and 3 is quite natural and there is nothing to

disbelieve their version. Therefore, I am of the

opinion that the prosecution is successful in proving

the guilt of the accused for the above said offence. I

have gone through the impugned judgment of

conviction passed by the trial Court. It has taken into

consideration all these materials on record and

formed an opinion that the prosecution is successful

in proving the guilt of the accused beyond reasonable

doubt. I do not find any reason to form a different

opinion. Hence, the impugned judgment of conviction

passed by the trial Court is required to confirmed.

28. Learned counsel for the appellant submits

that the incident had occurred during the year 2011.

The accused was hardly aged 40 years at the time of

incident. Now he is aged 50 years. He is having a

family to support. He is the only bread winner. The

victim had not sustained any serious injuries.

Therefore, leniency is to be shown in his favour while

sentencing the accused.

29. Considered the submission made by the

learned counsel for the appellant. The wound

certificate discloses that the victim had not sustained

any external injuries. But however, she complained

pain in the neck and she had complication in neck

movement and expressed pain. However, the X-ray

report also does not disclose any abnormality. The

incident had taken place about 10 years back.

30. The accused was acquitted for the offences

punishable under Section 436 of IPC by the trial

Court. The accused was sentenced to undergo

rigorous imprisonment for 6 months and pay fine of

Rs.1,000/- in default, he has to undergo simple

imprisonment for one month, for the offence under

Section 451 of IPC, even though it may extend two

years. Similarly, the accused is sentenced to undergo

rigorous imprisonment for a period of one year and

pay fine of Rs.1,000/- in default, he has to undergo

simple imprisonment for two months, for the offence

punishable under Section 435 of IPC, even though the

maximum sentence could have been extended up to 7

years. Therefore, I do not find any reason to modify

the quantum of sentence imposed by the trial Court

for these offences. For the offence punishable under

Section 307 of IPC, the accused is sentenced to

undergo rigorous imprisonment for a period of 3 years

and pay fine of Rs.3,000/- in default, he has to

undergo simple imprisonment for three months, for

the offence under Section 308 of IPC. While maximum

imprisonment is up to 10 years. Even though, the

wound certificate discloses that the victim had

sustained grievous injury, the evidence of PWs.4, 11

and 15 disclose that she had not sustained any

external injuries nor any injuries were found on

examination. But there was pain in movement of the

neck and the injured complained of swelling.

31. Under such circumstances, I am of the

opinion that leniency may be shown in favour of the

accused by modifying the sentence imposed for the

said offence under Section 307 of IPC. Hence, I

answer the above point partly in the affirmative and

proceeded to pass the following;

ORDER

The criminal appeal filed by the appellant is

allowed in part.

The impugned judgment of conviction dated

20.07.2013 passed in S.C.No.156/2012 by the

learned Prl.District and Sessions Judge, Dharwad for

the offences punishable under Sections 451, 435, 307

of Indian Penal Code is confirmed.

The order of sentence for the offence punishable

under Section 451 and 435 of Indian Penal Code are

also confirmed.

The order of sentence for the offence punishable

under Section 307 of Indian Penal Code is modified.

The accused is sentenced to undergo rigorous

imprisonment for a period of 2 years and to pay fine

of Rs.3,000/- and in default he shall undergo simple

imprisonment for a period of three months for the

offence under Section 307 of Indian Penal Code.

The above sentence shall run concurrently.

The accused is entitled for set off for the

substantive sentence.

Send back Trial Court Records along with the

copy of the judgment to the trial Court.

Sd/-

JUDGE

AM/-®