Chandru S/O Fakkirappa Harijan vs The State Of Karnataka
2021 Latest Caselaw 6835 Kant

          IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS 20TH DAY OF DECEMBER, 2021

                        PRESENT

      THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

                          AND

          THE HON'BLE MS.JUSTICE J.M. KHAZI

          CRIMINAL APPEAL NO.100141/2019

BETWEEN

1.     CHANDRU S/O FAKIRAPPA HARIJAN
       AGE: 35 YEARS, OCC: COOLIE,
       R/O: BADIMANAL, KUSHTAGI TALUKA,
       KOPPAL DISTRICT, NOW AT HARIDEVANAGAR,
       HABBUWADA, KARWAR 581301.

2.     SMT.PREMA W/O CHANDRU HARIJAN
       AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
       R/O: TIRVALLI, KARAKATTANALLI,
       HANGAL TALUK, HAVERI DISTRICT,
       NOW AT HARIDEVANAGAR,
       HABBUWADA, KARWAR 581301.
                                             ...APPELLANTS
(BY SRI.K.S.KORISHETTAR, ADV.)

AND

THE STATE OF KARNATAKA,
(KARWAR TOWN POLICE STATION),
REP. BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
                                         ...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)
                                 2


     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER PASSED BY THE SESSIONS JUDGE, UTTARA KANNADA,
KARWAR IN S.C. NO.37/2012 DATED 28.08.2013 AND
CONSEQUENTLY, ACQUIT THE ACCUSED NOS.1 & 2 BY
ALLOWING THIS APPEAL.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 13.12.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:

                         JUDGMENT

Being aggrieved by their conviction and sentence for

the offence punishable under Section 302 read with

Section 34 of the Indian Penal Code, 1860, (hereinafter

referred to as "IPC" for short) appellants/accused Nos.1

and 2 have come up with this appeal under Section 374(2)

of the Code of Criminal Procedure, 1973 (hereinafter

referred to as "Cr.P.C." for short).

2. Vide the impugned judgment and order of

conviction, the appellants/accused are sentenced to

undergo imprisonment for life and pay fine of Rs.10,000/-

each in default to undergo rigorous imprisonment for

further period of six months.

3. For the sake of convenience, the parties are

referred to by their rank before the Trial Court.

4. The allegations against the accused are that

accused Nos.1 and 2 are husband and wife. Deceased

Sushant was the son of accused No.2 through her first

husband. Accused Nos.1 and 2 along with deceased

Sushant and CW.10/PW.6 Kamala, the mother of accused

No.2 were living in Haridevnagar, Habbuwada of Karwar.

Accused Nos.1 and 2 were not taking care of the deceased

Sushant with love and affection and they were

apprehending that if accused No.2 begets any other

children through the second husband i.e., accused No.1,

they will have to take care of the deceased Sushant also

and with the intention of causing the death of the child

i.e., deceased Sushant, on 13.12.2011 at around 02:30

a.m., they dashed the head of the child against the wall of

the house and also pressed his head against the floor.

Accused No.2 also bit him over his cheek and other parts

of the body. As a result of the assault, the child died and

thereby accused have committed the offence under

Section 302 of IPC.

5. Accused have pleaded not guilty to the charge

framed against them.

6. In support of the prosecution case, in all 14

witnesses are examined as PWs.1 to 14, Exs.P1 to 15 and

MOs.1 to 6 are marked.

7. During the course of the statement under

Section 313 of Cr.P.C., the accused have denied the

incriminating evidence arising in the prosecution case.

They have not chosen to lead defence evidence.

8. After hearing arguments of both sides, the

learned Sessions Judge has convicted the accused and

sentenced them to undergo imprisonment for life and also

pay fine with default sentence. It is this judgment which is

challenge in this appeal.

9. During the course of his argument, the learned

counsel representing the accused submitted that the

impugned judgment and order of the Trial Court is

erroneous, perverse and contrary to the settled principles

of law and as such requires to be set aside. The Trial Court

has overlooked the evidence, facts and circumstances of

the case. The allegations made by the prosecution are

baseless and unfounded. The prosecution has not proved

the case beyond reasonable doubt. He would further

submit that there are no eyewitnesses to the case of the

prosecution. Those witnesses who have supported the

prosecution case are not in good terms with the accused.

The death of deceased Sushant is a natural death. The

complaint is filed at a highly belated stage. No independent

witnesses are examined and the conviction is based on the

interested testimony of the Police witnesses. The

conclusions arrived at by the Trial Court is only on

assumptions, presumptions, surmises and conjectures. It

is not based on sound reasoning. The Trial Court should

have extended benefit of doubt to the accused and prays

to allow the appeal.

10. On the other hand, the learned Additional

State Public Prosecutor representing the State argued that

the accused persons were the only occupants of the house

when the incident took place. They were the only persons

who were found in the company of the deceased child

when PW.10 Arun and PW.11 Umakant, who were working

in the Traffic Police Station, left the child in the company of

the accused persons and at that time the child was hale

and healthy. There is also evidence of the other witnesses

regarding the accused persons being the only occupants of

the house when the incident took place. He would further

submit that the parents of the deceased child i.e., accused

persons, are not having any explanation for his unnatural

death. Taking into consideration of all these aspects, the

Trial Court has rightly convicted the accused persons and

sentenced them accordingly and prays to dismiss the

appeal.

11. We have heard elaborate arguments on both

sides and perused the records.

12. It is the case of the prosecution that accused

No.1 is the second husband of accused No.2. Through her

first husband, accused No.2 was having a male child by

name Sushant, who was aged four years at the time of its

death. It is alleged that accused Nos.1 and 2 were not

taking proper care of the deceased child and on

13.12.2011 at around 12:30 a.m., in their house, accused

No.1 assaulted the deceased child by dashing its head

against the wall and pushed it to the floor and accused

No.2 bit the child on its body, as a result of which, the

child died and thereby the accused Nos.1 and 2 have

committed the offence punishable under Section 302 read

with Section 34 of IPC.

13. It is not in dispute that the accused Nos.1 and

2 are husband and wife and PW.6 Kamala is the mother of

accused No.2 deceased Sushant was the son of accused

No.2 through her first husband. It is also not in dispute

that the accused Nos.1, 2, PW. 6 Kamala and dead child

were living in the same home where the incident took

place. PWs.1, 2, 4 and 5 are the neighbours of accused

Nos.1 and 2 and PW.6. PWs.1 to 4 and 5 are also cited as

eye witnesses to the incident. However, they have not

supported the prosecution case so far as the actual

incident is concerned. However, their testimonies prove

the fact that the deceased child was living with accused

Nos.1, 2 and PW.6. On 13.12.2011, the child was found

dead in the house of accused Nos.1 and 2. During the

course of his examination-in-chief, PW.1 Chandrashekar

Lamani has deposed that on 13.12.2011, the child in

question was found dead in the house of the accused

persons and on that day accused Nos.1 and 2 were in the

house. Though PW.1 admits his signature to the complaint

at Ex.P1, he has denied having given the complaint. On

the other hand, he has claimed that in respect of death of

the child, the Police summoned him to the Police Station

and took his signature. He is also cited as witness to the

spot cum seizure mahazar. With regard to the said aspect

also he has not supported the prosecution case. The

accused persons have taken up a defence that PW.6

Kamala, the mother of accused No.2 was a drunkard and

while carrying the deceased baby in an inebriated

condition, the child fell down and sustained injury.

However, during his cross-examination by the defence,

PW.1 has expressed ignorance to the suggestion that the

child died while it fell down on being carried by PW.6

Kamala.

14. PW.2 Prashant is cited as a circumstantial

witness to the effect that accused Nos.1 and 2 used to

assault the child and many times he intervened and

pacified them and rescued the child. However, he has not

supported the prosecution case on that aspect. He is also a

witness to the spot cum seizure mahazar Ex.P2 and the

sketch drawn by the Investigating Officer at Ex.P3. He has

supported the prosecution case on this aspect and deposed

that on the date of the incident, the Police came to the

spot and drew the mahazar and seized a bed sheet and

soil as per MOs.1 to 3. They have also prepared a sketch

at Ex.P3. He has identified Ex.P4 as the photograph

captured at the time of the spot cum seizure mahazar.

During his cross-examination by the accused persons, he

has expressed ignorance to the suggestion that the child

died due to fall while being carried by PW.6 Kamala during

inebriated condition.

15. Similarly PW.5 Shivanand, who is a neighbour

of the accused persons is cited as a eye witness having

seen accused Nos.1 and 2 assaulting the child as a result

of which it died. Though he has also not supported the

prosecution case on this aspect, his evidence establish the

fact that on the date of incident, accused Nos.1 and 2 were

in the house along with the child.

16. According to the prosecution, on the previous

night i.e., on 12.12.2011 at around 11:00 p.m., PW.6

Kamala was found in an inebriated condition at the

Subhash circle and the deceased child was roaming by the

side of the road. After coming to know about it, PW.10

Arun Kamble, Head Constable and PW.11 Umakant, ASI of

the Traffic Police Station enquired PW.6 Kamala and she

replied that the child is her grandson and when they asked

her to take the child back to the home, she replied that

since she is in an inebriated condition, she is not able to

take the child and asked the said Police to take the child to

her house. It is further case of the prosecution that in this

regard, PWs.10 and 11 enquired PW.4 Elisha about the

whereabouts of the parents of the child and he took them

to the house of accused Nos.1 and 2. All of them brought

the accused Nos.1 and 2 to the place where PW.6 Kamala

had slept and handed over the child to accused Nos.1 and

2. PWs.10 and 11 went along with accused Nos.1 and 2 to

see that the child reaches the home safely.

17. The evidence of PW.4 Elisha, PW.6 Kamala,

PW.10 Arun and PW.11 Umakant prove this fact. During

the course of her evidence, PW.6 Kamala, the mother of

accused No.2 and the grandmother of the deceased child

has deposed that on previous day of the death of the child,

at 10:00 p.m. accused Nos.1 and 2 started quarrelling and

therefore she took the child and went outside the house.

She has also stated that since she was in an inebriated

condition, she slept by the side of the road near Subhash

circle, but the Police took the child with them to the house

of the accused. She slept by the side of the road at

Subhash circle and went home in the morning and when

she reached home, accused Nos.1 and 2 took the child to

the Hospital saying that it is not keeping well.

18. During the course of his evidence, PW.4 Elisha,

who is a neighbour of accused persons has deposed that

on the previous day at 11:00 p.m., PWs.10 and 11 came

and enquired with him about the parents of the child

saying that PW.6 has slept by the side of the road at

Subash circle and the child was roaming on the road. He

has further deposed that he took PWs.10 and 11 to the

house of accused persons and in turn the Police brought

accused Nos.1 and 2 with them to the Subash circle and

handed over the child to them. Both accused and the child

were sent in the autorickshaw to the house. He has

specifically stated that on the next day at 07:00 a.m. he

came to know that the child has died and he found some

bite marks on the cheek and the tongue appears to be

beaten.

19. At the relevant point of time, PW.10 Arun was

working as Head Constable and PW.11 Umakant was

working as ASI at the Traffic Police Station, Karwar. Their

evidence establish the fact that on 12.12.2011 at 11:00

p.m., they found PW.6 Kamala sleeping by the side of the

road at Subash circle and her grandson i.e., Sushant was

moving on the road. When both of them enquired with

PW.6 Kamala, she revealed that the child is her grandson

and since its parents i.e., accused Nos.1 and 2 were

quarrelling, she took the child with her and since she is

drunk, she is unable to go back home. Therefore, with the

help of PW.4 Elisha, they reached the house of accused

Nos.1 and 2 and brought them back. At the spot, accused

Nos.1 and 2 identified their son and took him to their

house. PWs.10 and 11 made sure that accused persons

reached their home along with the child safely, PW.11

Umakant has specifically deposed that he went along with

accused Nos.1 and 2 to their house when they took back

the child with them and came back. On the next day they

came to know about the death of the child in the house of

accused Nos.1 and 2.

20. During his cross-examination, PW.10 has

stated that he and PW.11 went to the house of accused

persons on the motorbike, but they did not take the child

with them. When questioned that they did not leave the

child at the Police Station, PW.10 has replied that since the

grandmother of the child was with him, they did not leave

the child at the Police Station. PW.10 has admitted that

since PW.6 Kamala was in an inebriated condition, she was

not in a position to safeguard the child. On this aspect,

when questioned whether there was any impediment for

them to leave the child at the Police Station, PW.11 has

replied that since the Police Station was very near and the

Sentry was very near to the place where the child was

playing, they did not leave the child at the Police Station.

It is relevant to note that when they enquired with PW.6

about the child, she was in an inebriated condition. The

Police were not sure about the accused being the parents

of the child and therefore they thought it proper to bring

the parents of the child to the place where PW.6 was

sleeping and made sure that accused Nos.1 and 2 identify

the child and take it with them safely. When suggested

that while PW.6 was carrying the child, it fell down and

sustained injury, PW.10 has expressed his ignorance.

However, PW.11 has denied that on that night the child

sustained head injury and therefore they did not take the

child with them to the house of the accused persons.

21. If at all the child was injured when PWs.10 and

11 saw him at Subhash circle, they would have certainly

got treated him by taking him to the hospital. The very

fact that they have not done so goes to show that the child

was normal and he was not at all injured. Though PW.4

Elisha has not completely supported the prosecution case

and to some extent he has tried to help the accused

persons, no suggestion is made to him that when he,

PWs.10 and 11 saw the child, it was already injured and it

had sustained head injury. This fact indicates that a futile

attempt is made by the defence to show as though the

child had sustained head injury on account of PW.6 Kamala

carrying the child in an inebriated condition. If that were to

be the case, then the Police would have certainly filed

charge sheet against PW.6.

22. The testimony of PWs.4, 10 and 11 establish

the fact that at the Subhash circle after finding the child

roaming without the guardianship of its parents as well as

PW.6 had slept by the side of the road in an inebriated

condition, PWs.10 and 11 with the help of PW.4 brought

accused Nos.1 and 2 to Subhash circle and handed over

the child to them and they made sure that both accused

reached the home safely with the child. Thus, through the

evidence placed on record, the prosecution has established

that at the relevant point of time, accused Nos.1 and 2

were living with the child and PW.6. Immediately prior to

the incident wherein the child sustained head injury,

accused Nos.1 and 2 were found in the company of the

deceased child. On the next day, in the morning, the child

was dead with the head injuries. Absolutely accused Nos.1

and 2 are not having any plausible explanation for the

child sustaining the head injuries. Inspite of the

neighbouring witnesses turning hostile to help the accused

persons, from the material on record, the prosecution has

proved that the child has sustained injuries while in the

house of accused Nos.1 and 2 and at that time, they were

the only occupants.

23. So far as PWs. 1, 2, 3 and 5 turning hostile

and not supporting the prosecution case, it is relevant to

refer to the decision reported in (2017) 1 SCC 529 in the

matter of Ramesh and Others. V/s. State of Hariyana,

wherein the Hon'ble Apex Court observed and held that for

various reasons witnesses turn hostile, may be due to

threat/ intimidation or Inducement by various means or

Use of muscle or money power by the accused or Use of

stock witnesses or Protracted trials or hassles faced by the

witnesses during investigation and trial or Non-existence of

any clear-cut legislation to check hostility of the witnesses

or a combination of these factors. Referring to Section 154

of Evidence Act, as held by the Hon'ble Apex Court in the

case reported in (2015) 3 SCC 220 in the matter of

Vinodkumar V/s. State of Punjab even if a witness is

characterized as a hostile witness, his evidence is not

completely effaced. Such evidence remains admissible in

trial and there is no legal bar to base a conviction upon his

testimony, if corroborated by other reliable evidence. As

already discussed though PWs.1, 2, 3 and 5 have turned

hostile with regard to the complicity of accused in the

actual crime, their evidence establishes the fact that on

the date of incident accused Nos.1 and 2 were the only

inmates of the house along with the child and in the

morning it was found that the child has died due to injuries

sustained by it. Accused have no explanation for the same.

They are in the exclusive knowledge of what exactly

transpired in the house resulting in the child sustaining

injuries resulting in his death.

24. In the absence of any explanation as to how

the child sustained injuries and disclosing the information

which is within their exclusive knowledge, the prosecution

has proved that the child sustained head injuries and

succumbed to the same and accused Nos.1 and 2 are

responsible for it.

25. Now coming to the medical evidence regarding

the cause of death. PW.7 Dr.Nandakumar has conducted

the postmortem examination on the dead body of the

deceased child. He has deposed that on 13.12.2011 he

conducted the postmortem examination and Ex.P11 is the

postmortem report. He has given opinion regarding the

cause of death as due to bleeding in the brain on account

of the second injury sustained to the head i.e., head injury

and the death has occurred about 12 to 18 hours prior to

the postmortem examination. At para 9 of his evidence, he

has deposed that if a child is forcibly pushed against the

wall, the second injury is possible. Similarly, if a child is

pressed against the ground with its face, injury No.1 is

possible. During his cross-examination, he has denied that

if a child falls while being carried by a person in an

inebriated condition, the second injury sustained by the

deceased is possible. The evidence of PW.7 proves the fact

that the death of the deceased was due to the injury

sustained by him and such injury is possible if the head of

the child is dashed against the wall and injury No.1 is

possible if its face is pressed against the floor.

26. The FSL report at Ex.P14 and serology report

at Ex.P15 establish the fact that the nylon mat and bed

sheet which were recovered from the house of the accused

and also the blood mixed mud recovered from their house

are stained with human blood and the blood stains on the

mat and bed sheet are of "O" group. The accused have no

explanation with regard to blood of human origin of "O"

group being found on these articles. Their defence that the

child has sustained injury while being carried by PW.6

Kamala and it fell down is not supported by any evidence.

If at all the child has sustained any injury, then the natural

course opened to them was to take the child to the

hospital and get it treated. A hypothetical suggestion is

made to the neighbouring witnesses that since Kamala was

a drunkard and addicted to drinking, it was common for

her to carry the child and during such circumstances, the

child used to sustain injuries. However, the accused have

failed to establish that on the previous day i.e., on

11.12.2011, the child has sustained injury while he was

being carried by PW.6. On the other hand, through the oral

and documentary evidence placed on record, the

prosecution has proved that the death of the child has

taken place inside the house of the accused persons and at

that time accused Nos.1 and 2 were the only occupants of

the said house. They have no explanation for the injury

sustained by the deceased who was their child. After the

prosecution has discharged its burden beyond reasonable

doubt, the onus shifts on the accused persons under

Section 106 of the Indian Evidence Act to explain the

circumstances in which the child has sustained the injuries

which resulted in its death. The accused persons have

failed to discharge this onus.

27. Appreciating the oral and documentary

evidence placed on record and in the light of the provisions

of Section 106 of Evidence Act, the Trial Court has rightly

held that the charges levelled against the accused are

proved beyond reasonable doubt. We find no perversity in

the findings of the Trial Court and accordingly we proceed

to pass the following:

ORDER

The appeal filed by the appellants/accused fails and

accordingly it is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

RSH / PJ