V. Venkatesh vs State Of Karnataka
2022 Latest Caselaw 6273 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 07TH DAY OF APRIL, 2022

                          BEFORE

        THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ

            CRIMINAL APPEAL No.771 OF 2011

BETWEEN:


1.     V. VENKATESH,
       S/O. LATE VENKATESHAPPA,
       AGED ABOUT 23 YEARS,

2.     SMT. JAYAMMA,
       W/O. LATE VENKATESHAPPA
       @ VENKATAPPA,
       AGED ABOUT 45 YEARS,

3.     MALLESHA,
       S/O. LATE VENKATESHAPPA @ VENKATAPPA,
       AGED ABOUT 31 YEARS,

       ALL ARE RESIDENTS OF
       BENCHIKATTE VILLAGE,
       JAGALUR TALUK,
       DAVANAGERE DISTRICT.                    ... APPELLANTS

(BY SRI V.B. SIDDARAMAIAH, ADVOCATE)

AND:

STATE OF KARNATAKA
BY BILICHODU POLICE,
DAVANAGERE DISTRICT.                       ... RESPONDENT

(BY SRI K.K. KIRAN KUMAR, HCGP)

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     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
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OF SENTENCE DATED 08.07.2011 PASSED BY THE PRL. DISTRICT
AND SESSIONS JUDGE, DAVANAGERE IN S.C.NO.7/2009-
CONVICTING THE APPELLANTS/ACCUSED NOS.1 AND 2 FOR THE
OFFENCE P/U/S 323 AND 304-II R/W SECTION 34 OF IPC AND THE
APPELLANT/ACCUSED NO.3 FOR THE OFFENCE P/U/S 304-II R/W
114 OF IPC AND THE APPELLANTS/ACCUSED NOS. 1 TO 3 ARE
CONVICTED AND SENTENCED TO UNDERGO S.I. FOR A PERIOD OF
ONE YEAR FOR THE OFFENCE P/U/S 323 R/W 34 OF IPC AND
FURTHER APPELLANTS/ACCUSED NOS.1 TO 3 ARE SENTENCED TO
UNDERGO S.I. FOR A PERIOD OF THREE YEARS AND TO PAY FINE
OF Rs.6,000/- EACH FOR THE OFFENCE PUNISHABLE UNDER
SECTION 304-II R/W 34 OF IPC IN DEFAULT TO PAY FINE AMOUNT
THEY SHALL UNDERGO FURTHER S.I. FOR A PERIOD OF 4
MONTHS.

     THIS CRIMINAL APPEAL COMING ON FOR FURTHER HEARING
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

against the judgment and order dated 8/11.07.2011

passed in S.C.No.7/2009 by the Court of Principal District

and Sessions Judge at Davanagere, wherein the learned

Sessions Judge, has convicted and sentenced the

accused for offences punishable under Sections 323 and

304-II r/w 34 of IPC.

2. Heard the learned counsel for the appellants

and the learned HCGP for respondent/State and perused

the material on record.

3. The brief facts of the case are that the first

informant/PW9-Lakshmamma is the wife of deceased

Virupakshappa. Their marriage took place 10 years prior

to the date of incident. In their wed lock, they have two

children aged about six and nine years respectively.

About 20 days prior to the date of incident the deceased

had availed loan of Rs.9,000/- from accused No.3,

working as a mason, for meeting the expenses in the

village festival. He had assured accused No.3 that he

will come and work under him. Since, the money was

not repaid, accused No.3 told his brother-accused No.1

and mother-accused No.2 to recover the said amount

from the deceased otherwise to get his property

transferred in his name by writing on a bond paper. At

his instigation, accused Nos.1 and 2 on 15.05.2008 at

about 8.30 p.m. came near the house of the deceased

and demanded him to return the amount. They fisted

and kicked him and took him to their house. After

causing his death they brought the dead body and

dumped it in front of his house.

4. Charges were framed against accused Nos.1

and 2 for offences punishable under Sections 323 and

304-II of IPC and against accused No.3 under Section

304-II r/w 114 of IPC.

5. In order to establish the guilt of the accused,

the prosecution got examined PWs.1 to 11 and got

marked Exs.P1 to P13 and MOs.1 to 3.

for offences punishable under Sections 323, 304-II r/w

34 of IPC.

7. Amongst the prosecution witnesses PWs.1 to

3 and 6 have not supported the case of prosecution and

they have been treated hostile.

8. PW4 is the is the panch witness to the inquest

mahazar-Ex.P4.

9. PW5 is the brother of the deceased. He

speaks about the motive as well as the incident in

question.

10. PW7 is the panch witness to Exs.P6 and P7

i.e., spot mahazar and the mahazar drawn at the time of

seizure of clothes of the deceased.

11. PW8 is the Doctor who conducted the post

mortem examination over the dead body.

12. PW9 is the first informant. She is an eye

witness to the incident in question. The complaint is

marked as Ex.P10.

13. PW10 is the Head Constable, who has

received the written complaint from PW9, which is

marked as Ex.P10 and issued FIR-Ex.P11 to the Court.

He has conducted the spot mahazar-Ex.P6 and seized

MOs.1 and 2.

14. PW11 is the Investigation Officer, who has

filed the charge sheet .

15. The specific case of the prosecution is that the

deceased Vijaykumar had availed a loan of Rs.9000/-

from accused No.3. Since he had not repaid the said

loan amount, accused No.3 instigated accused Nos.1 and

2 namely his brother and mother to recover the said loan

amount from the deceased otherwise to get his house

property in his name, written on a bond paper. Hence,

at the instigation of accused No.3, both accused Nos.1

and 2 went near the house of the deceased and

assaulted him with hands and dragged him towards their

house. On account of their assault, the deceased died

and thereafter, they brought the dead body and dumped

it in front of his house.

16. Apart from PWs.5 and 9 who are the brother

and wife of the deceased, the prosecution has got

examined PWs.1 to 3 who are stated to be the eye

witnesses. However, the said witnesses have not

supported the prosecution case. Therefore, the only

evidence which is available on record to establish the

charges are that of PWs.5 and 9.

17. Both PWs.5 and 9 have stated that the

deceased had availed loan of Rs.9,000/- from accused

No.3. PW5 has stated that accused No.3 had informed

accused Nos.1 and 2 to recover the said amount from

the deceased and in case the deceased failed to repay

the amount, they should get an agreement executed

from the deceased on a stamp paper. However, PW5

has not stated that accused No.3 had instigated accused

Nos.1 and 2 to assault the deceased or to cause his

death if he failed to repay the amount. It is not

forthcoming from his evidence as to how he came to

know that accused No.3 had told accused Nos.1 and 2 to

recover the amount from the deceased. Even PW9 i.e.,

wife of the deceased has not deposed in her evidence

that accused No.3 had either instigated accused Nos.1

and 2 to recover the amount from the deceased or to

assault him. Admittedly, accused No.3 was not present

when the incident took place. Merely because accused

No.3 had lent loan of Rs.9,000/- to the deceased and

asked accused Nos.1 and 2 to recover the said loan from

the deceased, that itself is not sufficient to hold that he

had instigated or abetted accused Nos.1 and 2 to commit

the offence. Even though the evidence of PWs.5 and 9

would throw some light with regard to accused No.3

lending loan to the deceased and asking accused Nos.1

and 2 to recover the said loan amount from him, there is

no satisfactory evidence to show that accused No.3

either instigated or abetted accused Nos.1 and 2 to

commit the offence.

18. Insofar as the incident in question is

concerned, as already noted, PWs.5 and 9 are the only

witnesses who speak about the same. In Ex.P10, PW9

has stated that at about 8.30 pm on 15.02.2008 both

accused Nos.1 and 2 assaulted her husband with hands

and also kicked him etc. Thereafter, they dragged him

towards their house. It is further stated that accused

No.1 assaulted her with hands. She closed the door of

the house and then the accused took her husband

towards their house. She has stated that one

Hanumakka, Rudresh and one Maruthi were present and

they requested the accused not to assault her husband.

Rudresh and Maruthi are examined as PWs.1 and 3 but

they have turned hostile. It is further stated in Ex.P10

that one of her relative by name Rudrappa S/o Siddanna

tried to pacify the accused. Thereafter, she returned to

her house and at about 10.30 p.m. the accused brought

the dead body of her husband and put it in front of her

house and went away.

19. In her evidence, PW9 has stated that accused

Nos.1 and 2 assaulted her husband and thereafter they

took him towards their house and she too went to the

house of the accused along with her children. Since her

children were hungry, she came back to her house and

then once again went to the house of the accused. At

that time, her husband was not present. Then, she

noticed that her husband was lying dead in front of her

house.

20. PW5 has deposed that when the accused

came demanding money from the deceased, he was

present and both accused Nos.1 and 2 quarreled with the

deceased and they took him away. At about 10.00 pm.,

the deceased returned to his house and once again

accused No.1 came and took him away. Thereafter, at

about 10.30 pm accused No.1 brought the deceased and

put him on a platform in front of his house.

21. PW9, in her evidence has stated that accused

Nos.1 and 2 took her husband towards their house to get

the bond paper from him. Pws.5 and 9 have not stated

as to what happened after the deceased was taken by

accused Nos.1 and 2 towards their house. It is not their

case that since accused Nos.1 and 2 assaulted the

deceased he collapsed or died at the spot. On the other

hand, it is stated after assaulting the deceased with

hands, they took him towards their house.

22. PW9 has not spoken about deceased being

assaulted after he was taken towards the house of

accused. She has stated that since her children were

hungry, she returned to her house. Therefore, she has

not witnessed as to what happened after the accused

took the deceased to their house. Even PW5 has not

stated about accused assaulting the deceased after he

was taken to their house. The witnesses have only

stated that the accused brought the deceased and

dumped him in front of his house and at that time he

was not breathing. Though PW9 has stated that both the

accused have brought the dead body and placed it on a

platform in front of her house, PW5 has stated that it

was accused No.1 who took the deceased for the second

time and later at about 10.30 pm, brought him back

dragging.

23. The prosecution has examined PW8-Doctor

who conducted the post mortem examination. He has

deposed that on 16.05.2008 between 4.00 pm and

5.00 pm he conducted the autopsy and he issued post

mortem report which is marked as Ex.P8. A provisional

opinion regarding cause of death was given that the

deceased succumbed to death due to intoxication by

liquor or any alcohol and he has not taken food for more

than 48-72 hours. As per FSL report, no poison was

detected in the samples and the final report was given

confirming the provisional opinion stating that the person

has died due to cardiac respiratory failure due to

intoxication of alcohol. In the cross-examination, PW8

has stated that if a person has not taken food for

48 hours normally he becomes weak and if he consumes

alcohol he may loose his balance.

24. As per the evidence of PW8 and the post

mortem report at Ex.P8, the cause of death is due to

intoxication of liquour or any alcohol and as per the final

report, the death is due to cardio respiratory due to

intoxication of alcohol. The evidence of PWs.5 and 9 are

inconsistent with the medical evidence, regarding cause

of death. Hence, it is difficult to come to a conclusion

that the deceased died on account of the assault by

accused Nos.1 and 2.

25. The findings recorded by the trial Court that

the injuries caused by the accused has resulted in the

death of the deceased and therefore, the accused Nos.1

and 2 are guilty of the offence punishable under Sections

323 and 304-II r/w 34 of IPC and accused No.3 is guilty

of the offence punishable under Section 304 II of IPC r/w

114 of IPC is not proper.

26. The evidence and the material on record

clearly establish that accused Nos.1 and 2 have

assaulted the deceased with hands. The ante-mortem

injuries like abrasions and contusions on the dead body

are noticed in EX.P8. The Doctor has not stated that the

said injuries are sufficient to cause the death in the

ordinary course of nature. Hence, it can be safely held

that accused Nos.1 and 2 have committed offence

punishable under Section 323 r/w 34 IPC.

27. Accused Nos.1 and 2 were in custody from

19.06.2008 till 18.12.2008, for a period of six months.

The incident took place in the year 2008. More than 13

years have passed since the incident occurred. Hence,

this Court is of the view that the period of imprisonment

undergone by accused Nos.1 and 2 is sufficient sentence

for offence punishable under Section 323 r/w 34 of IPC.

Hence, the following:

ORDER

i. The appeal is partly allowed.

ii. The impugned judgment and order dated

8/11.07.2011 passed in Special Case No.7/2009 by the

Court of the Principal District and Sessions Judge at

Davanagere, convicting accused No.3 for the offence

punishable under Section 323 r/w 34 IPC and 304-II

r/w 34 IPC is hereby set aside.

iii. The impugned judgment and order convicting

accused Nos.1 and 2 for the offence under Section

304-II r/w Section 34 of IPC is set aside.

iv. The conviction of accused Nos.1 and 2 for

the offence punishable under Section 323 r/w 34 of

IPC is hereby confirmed.

v. The sentence imposed against

accused Nos.1 and 2 for the said offence is modified.

Accused Nos.1 and 2 are sentenced to the period of

imprisonment already undergone by them.

Sd/-

JUDGE

TL