Iranagouda @ Veeranagouda S/O ... vs The State Of Karnataka
2022 Latest Caselaw 322 Kant

         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

    DATED THIS THE 10TH DAY OF JANUARY, 2022

                      PRESENT

 THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

                        AND

       THE HON'BLE MR. JUSTICE S. RACHAIAH

           CRIMINAL APPEAL NO.100217/2019

BETWEEN:
[email protected]
S/O CHANNAGOUDA PATIL
AGE : 40 YEARS,
OCC : HOUSEHOLD WORK,
R/O HIREBASUR,
TQ: HANAGAL,
DIST : HAVERI.
                                       .. APPELLANT

(BY SRI.CHANDRASHEKAR RODNAVAR, ADVOCATE)

AND:

THE STATE OF KARNATAKA
THROUGH ADUR POLICE STATION
DIST : BELAGAVI
NOW REP. BY S.P.P, HIGH COURT
OF KARNATAKA,
DHARWAD BENCH.
                                    .. RESPONDENT

(BY SRI.V.M.BANAKAR, ADDL.SPP)
                                       Crl.A.No.100217/2019

                             2


     THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C SEEKING TO ALLOW THIS APPEAL AND SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION DATED
12.03.2019 AND ORDER OF SENTENCE DATED 14.03.2019
IN S.C.NO.05/2017 ON THE FILE OF THE I-ADDITIONAL
DISTRICT AND SESSIONS JUDGE, HAVERI AND THEREBY
ACQUIT THE APPELLANT/ACCUSED FOR THE OFFENCES
P/U/S 302 OF IPC, 1860.
     THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING THIS DAY, Dr.H.B.PRABHAKARA SASTRY,
DELIVERED THE FOLLOWING:

                        JUDGMENT

The present appellant has challenged his conviction for

the offence punishable under Section 302 of Indian Penal

Code (hereinafter for brevity referred to as, 'IPC') and order

on sentence passed by the Court of I Additional District and

Sessions Judge at Haveri (hereinafter for brevity referred to

as 'Sessions Judges Court') by its judgment of conviction

dated 12.3.2019 and order on sentence dated 14.03.2019

passed in S.C No.5/2017.

2. The summary of the case of the prosecution is

that the accused was not agreeable to the partition and the

share of the property that had come to the share of his

father in a joint family properties partitioned between his Crl.A.No.100217/2019

father and father of the deceased, as such, he was now and

then raising the dispute and quarrelling with the deceased

and his family members. The father of the deceased

Jagadishagouda Patil is the younger brother of the father of

the accused by name Channagouda Patil. The house in which

both the accused and the deceased were residing was a

single house, however, portions in the house were

partitioned and shared by the parties. On the day

05.09.2016, when the deceased Jagadishagouda Patil along

with his family members including his wife, father and

brother was sleeping after having dinner of Ganesha festival

at about 2.00 a.m on 06.09.2016, at the yelling noise of

Jagadishagouda Patil, who was sleeping along with his

brother Rajanagouda Patil, the complainant Lakshmi

Jagadishagouda Patil (P.W.1) rushed to the spot only to see

that her husband had sustained bleeding injuries on the neck

and other parts of the face and the accused was standing

next to him holding a blood stained axe in his hands. Even

P.W.5-Rajanagouda Patil also was awake. At the same time

P.W.8-Mahadevagouda Rudragouda Patil, father of the Crl.A.No.100217/2019

deceased who was sleeping in the same house had also

rushed to the spot hearing the screaming noise of his son.

All the three of them noticed the blood stained axe in the

hands of the accused. When enquired with him about the

incident, the accused stated that being not satisfied with the

share of his father in the partition, he has assaulted the

deceased and committed the act. Stating so, the accused

threw the blood stained axe in the spot and ran away from

there. Incidentally the accused was also residing in the other

portion of the same house, subsequent to the partition.

It is the further case of the prosecution that

immediately i.e. after summoning a Maruthi Omni motor car,

these people shifted the injured to the hospital, where the

injured was declared brought dead. In that connection, PW1

the complainant lodged a police complaint on 06.09.2016 as

per Ex.P1. The police after investigation having registered

the said complaint in their Station in Crime No.124/2016 for

the offence punishable under Section 302 of IPC, conducted Crl.A.No.100217/2019

investigation and filed charge sheet against the accused for

the alleged offence.

3. Since the accused who already by then was

arrested and produced before the Court, pleaded not guilty

the trial was held, wherein, the prosecution in order to prove

the alleged offence against the accused examined ten

witnesses as P.W.1 to P.W.10 and got marked documents

from Exs.P1 to P17(a) and Material Objects at M.O.1 to

M.O.8. Neither any witnesses were examined nor any

documents were marked as Exhibits from the accused side.

4. After hearing both sides, the trial Court by its

impugned judgment dated 12.03.2019 convicted the accused

for the offence punishable under Section 302 of IPC and by

its order of sentence dated 14.03.2019 sentenced the

accused to undergo simple imprisonment for life and to pay a

fine of `50,000/-, in default of payment of fine, to undergo

simple imprisonment for a period of two years.

Crl.A.No.100217/2019

5. The respondent is being represented by the

learned Additional SPP.

6. The Sessions Judges Court records were called

for and same was placed before the Court.

7. Heard the arguments of learned counsel from

both sides and perused materials placed before the Court,

including Sessions Judges Court records.

8. The points that arise for our consideration are

that:

1) Whether the prosecution has proved beyond the reasonable doubt that Jagadishagouda Patil died between 2.00 a.m to 2.30 a.m on 06.09.2016 in his house situated at Hirebasur village within the limits of complainant police station and that the said death was homicidal?

2) Whether the prosecution has proved beyond reasonable doubt that the said death of deceased Jagadishagouda Patil was caused by the accused and accused alone and it was a murder punishable under Section 302 of IPC?

Crl.A.No.100217/2019

3) Whether the judgment of conviction and order on sentence passed by Sessions Judge warrants any interference at the hands of this Court?

9. The learned counsel for the appellant in his brief

arguments submitted that it was not denied or disputed

about the relationship between the deceased and the accused

and also of the fact that all of them were residents of

Hirebasur village within the limits of the complainant Police

Station. He further submitted that he would also not dispute

the death of Jagadishagouda Patil which has taken place in

the early hours of the day 06.09.2016 at his house and that

it was a homicidal death. However, he strongly dispute that

it was the accused and accused alone who has caused the

said homicidal death of the deceased and that the

prosecution has proved the alleged guilt against the accused

beyond reasonable doubt. Stating that non sending of the

clothes said to have worn by P.W.5 and non seizure of the

alleged Maruthi omni vehicle in which the deceased was

stated to have been shifted from the place of incident to the Crl.A.No.100217/2019

hospital would weaken the case of the prosecution and

further stating that the variation in the evidence of P.W.1 and

P.W.5 with respect to the place where P.W.1 was said to be

sleeping at the time of incident, creates a serious doubt in

the case of the prosecution, the learned counsel submitted

that the trial Court ought to have considered the same and

acquitted the accused giving him the benefit of doubt.

10. The learned Additional SPP in his arguments

submitted that nature of the death that it was homicidal is an

admitted fact, so also the place of incident. The evidence of

P.W.1, P.W.5 and P.W.8 go to show that both the deceased

and accused was residing in the same house and it was not

divided by any partition wall in the common house in which

they were residing. He also submitted that the evidence of

P.W.1, P.W.5 and P.W.8 who are none other than the family

members was placed before the Court since at the time of

incident it was only the family members and family members

alone who were there in the house and all of them have seen

the incident and supported the case of the prosecution. Even Crl.A.No.100217/2019

the FSL report also goes to show that the weapon which was

used for commission of offence was stained with human

blood. As such, the trial Court after due appreciation of the

evidence in its proper perspective has rightly convicted the

accused of the alleged offence and interference in which is

not warranted by this Court.

11. Among the ten witnesses examined by the prosecution,

the most important and material witnesses are P.W.1, P.W.5

and P.W.8. It is not in dispute that P.W.1-Laxmi

Jagadishagouda Patil is the wife, PW5-Rajanagouda Patil is

the younger brother and P.W.8-Mahadevagouda Rudragouda

Patil is the father of the deceased. It is also not in dispute

that all these witnesses were the residents of Hirebasur

Village. However, P.W.5, who was running a Company was

staying at Dharwad and as on the date of incident, due to

Ganesha Festival he had been to his native village i.e.

Hirebasur and he was staying with his father and brother on

the date of incident. All these three witnesses in their

evidence uniformly have stated that there was a partition of Crl.A.No.100217/2019

joint family properties between P.W.8- Mahadevagouda

Rudrappagouda Patil and his elder brother Channagouda

Patil. The accused is the son of said Channagouda Patil, as

such, he is cousin brother of deceased Jagadishagouda Patil.

P.W.1, P.W.5 and P.W.8 have also stated that after the

partition the common house in which they were residing was

also partitioned, wherein the deceased along with his wife

and father was living in one portion of the said house and

accused was living in another portion of the same property.

However, there was no partition wall erected in the house

bifurcating the common house even after the partition. All

these three witnesses have further stated that previous to

the date of incident, which was 05.09.2016, was the day of

Ganesha festival, as such, P.W.5 the other son of P.W.8 has

also been to their house and was staying with them. After

having dinner of the festival all of them were sleeping in their

house. The deceased with his brother P.W.5 was sleeping in

the hall of the house, the other members were sleeping in

the other portion of the house. After the midnight, at about

2.00 a.m in the morning on 06.09.2016, they heard Crl.A.No.100217/2019

screaming and yelling noise of deceased Jagadishagouda

Patil. PW5 who was sleeping next to him also got up and

started screaming, at which, P.W.1, the wife of the deceased,

P.W.8, the father of the deceased rushed to the place joined

by the other female members of the family C.W.8 and C.W.9.

13. All of them saw that the deceased

Jagadishagouda Patil was lying on the ground and sustained

bleeding injury on his neck and on the face near the jaw and

on chin. The accused was also found standing next to

Jagadishagouda Patil holding blood stained axe in his hand.

All these people enquired him as to why he did so, for this,

the accused stated that since he was not happy with the

share given to his family in the partition, he has committed

the act. According to these witnesses, stating so, the accused

threw blood stained axe on the spot and ran away from the

spot. Immediately thereafter, P.W.1, P.W.5 and P.W.8 joined

by the other inmates in the house summoned Maruthi Omni

car available in the village and they shifted the injured to Crl.A.No.100217/2019

the District Hospital. However, the injured Jagadishagouda

Patil succumbed to the injuries while on the way to the

hospital. P.W.1, P.W.5 and P.W.8 have also stated that

accused has committed the said act since he had a grudge on

the deceased on the pretext that his father did not get a

proper share in the partition and it is in that regard he was

quarrelling now and then with the deceased.

P.W.1, P.W.5 and P.W.8 were cross-examined from the

accused side, wherein the accused has only suggested the

denial suggestions to the witnesses denying the alleged act

and it was accused who had caused the injury. However, all

the three witnesses have not admitted those suggestions.

Barring the same, nothing more could be elicited in the cross

examination of P.W.1 P.W.5 and P.W.8 either shaking the

credibility of the evidence nor imbibing any doubt in their

evidence.

13. A careful analysis of evidence of P.W.1, P.W.5

and P.W.8 would go to show that on the night of the incident,

apart from the deceased, even his brother i.e., P.W.5, his Crl.A.No.100217/2019

wife i.e., P.W.1 and father i.e., P.W.8 were all sleeping in

very same house. Their evidence also go to show that the

accused who had got a share of some portion in the very

same house was also residing in the same house. The said

aspect that the accused was staying there has come out in

the cross-examination of P.W.5 in the form of a suggestion

made to the witness by none else than the accused

suggesting that, on the date of Ganesha Festival, all of them

including the accused, had taken meals together. This

clearly go to show that the accused was also residing in one

portion of the very same house. The said aspect is even

corroborated by the rough sketch of the scene of offence

which is at Ex.P.17 and same has not been denied or

disputed from the accused side. The said sketch also go to

show that in one big house, three portions of residences have

been identified, one for the deceased and his family and

another for the accused and his family and another one was

for Ananda Patil and his family. No bifurcating wall in-

between these residential portions have been shown in the

said sketch, as such evidence of P.W.1, P.W.5 and P.W.8 to Crl.A.No.100217/2019

the effect that under one single roof, all of them were staying

even after the partition, however, in different rooms stands

established.

14. P.W.1 and P.W.8 both have stated that in the

early hours of 06.09.2016 at about 2.00 a.m to 2.30 a.m

after hearing the screaming and yelling noise, both of them

have rushed to that portion of the house where the deceased

was sleeping along with his brother. P.W.1 and P.W.8 have

also stated that, on that night, the deceased was sleeping

with his brother i.e. P.W.5. The said evidence is further

corroborated by the evidence of P.W.5 who also stated that,

on an ill-fated night, it was he who was sleeping along with

the deceased. He has also stated that at about 2.00 a.m, on

06.09.2016 he heard the screaming noise of his brother

deceased Jagadishagouda Patil and that he got up

immediately. All of them have uniformly stated that, when

they saw, they not only found that the deceased had

sustained bleeding injuries on the neck, but they also saw

the accused standing next to the deceased holding blood Crl.A.No.100217/2019

stained axe in his hand. P.W.5 has also stated that after

hearing the screaming noise of his brother, when he got up,

he not only saw the accused holding blood stained axe in his

hands, but, also noticed that the accused was attempting to

lodge one more blow upon the accused. However, he held

axe to prevent the accused from proceeding from the act,

still, the axe landed on the jaw and chin on the facial portion

of the deceased. The said evidence of P.W.5 is further

corroborated by the evidence of Doctor P.W.3 who conducted

autopsy on the body of the deceased, as well the

postmortem report at Ex.P.8, which shows that the deceased

had sustained chopped wound below the chin measuring 9

cm x 2 cms x bone deep, horizontally placed exposing

underline lacerated soft tissues and fractured jaw bone. The

said wound is also visible in the photograph of the deceased

at Ex.P12, which is not in dispute.

15. Thus, the direct evidence of P.W.5 shows that in

his presence only the accused had attempted to assault the

deceased with a fatal blow again, however, he (P.W.5) could Crl.A.No.100217/2019

able to prevent it from landing on the neck portion of the

deceased. Added to this, the evidence of P.W.1, P.W.5 and

P.W.8 that on their enquiry, at the spot, the accused stated

to them that on being dissatisfied with the share given to his

father in the family partition of the properties, he had

committed the said act, would go to show that it was accused

and accused alone who with an intention to put an end to the

life of the deceased had come prepared, armed with a

weapon which is an axe and committed the act of assaulting

the deceased. Therefore, even though neither P.W.1 nor

P.W.5 or P.W.8 have seen the act of accused lodging the first

fatal blow upon the neck of the deceased, however, their

evidence that the accused was very much present in the spot

holding blood stained axe and he attempted to lodge second

blow which was prevented by P.W.5 and also the statement

made by P.W.1, P.W.5 and P.W.8 that they rushed to the

spot within no further time of the alleged act, makes it very

clear that it was accused and accused alone who has

committed the act of inflicting fatal blow on the neck of the

deceased Jagadishgouda Patil with an axe with an intention Crl.A.No.100217/2019

to eliminate him due to the previous dissatisfaction in the

alleged share in the property.

16. P.W.7-Basavaraj Tirakappa Mellihalli has stated

that the inquest panchanama of the body of the deceased

was drawn in his presence as per Ex.P11 wherein the

panchas have suspected the act of the accused in assaulting

and causing the death of the deceased. However, they

stated that the exact cause of death can be ascertained only

through postmortem examination.

17. P.W.1, P.W.5 and P.W.8 have identified the weapon

which is an axe at M.O.1 and have stated that it is the

weapon with which the accused has committed the alleged

act. The seizure of the said weapon is further supported by

the evidence of PW2-Kumar Guddappa Karigar who is also

the witness for drawing of the scene of offence panchanama.

Apart from identifying the scene of offence panchanama at

Ex.P2 the one which was drawn in the spot, he has also

identified the axe at M.O.1. Though in his cross-examination

at one place he has stated that police have obtained his Crl.A.No.100217/2019

signature on a document written in the Police Station, but it

was not brought from his mouth that the document which is

alleged to have been written in the Police Station was the

very same document which was marked at Ex.P.2.

Therefore, when the witness in his examination-in-chief has

stated that he was summoned by the police and as such, he

was present while drawing panchanama at Ex.P2 and has

stated that the police have seized M.O.1 in the spot and he

has identified the same, his mere statement that the police

have taken his signatures on the documents written in the

police station itself, would not show that Ex.P2 and Ex.P7

were drawn by the police in the Police Station. Furthermore,

no where the accused has denied the place of the alleged

incident as the house of the deceased at Hirebasur village.

Therefore, the alleged spot of the offence is also established

from the prosecution side.

18. PW.3-Dr.K.B.Geeta has stated that she has

conducted autopsy on the body of the deceased Crl.A.No.100217/2019

Jagadishagouda Patil and has noticed the following external

injuries on the body of the deceased:

1) Chopped wound below the chin measuring 9 cm x 2 cms x bone deep, horizontally placed exposing underline lacerated soft tissues and fractured jaw bone, blood extra vacation seen around the injury.

2) Lacerated wound horizontally placed on left side of the neck, 7.5 cm above and middle of left colour bone measuring 7 cm x 2.5 cm x mussel deep, exposing underline lacerated fascia mussel, blood vessel and nerves.

The Doctor has opined that according to her on

examination of the dead body she came to an opinion that

the death of the deceased was due to shock and hemorrhage

as a result of neck injury sustained. She has identified the

postmortem report issued by her at Ex.P8.

After seeing the axe at M.O.1 she has also stated that

the injuries mentioned in the postmortem report may be

possible by the assault with axe, which is at M.O.1. Her

evidence regarding the injuries found on the deceased with Crl.A.No.100217/2019

the possibility of the weapon at M.O.1 causing such type of

injuries could not be shaken in her cross-examination.

When the said medical evidence is appreciated in the

light of the material evidence of P.W.5 and evidence of P.W.1

and P.W.8, it clearly go to establish that it is the accused and

accused alone, who had caused the fatal injuries upon the

deceased by using the weapon at M.O.1.

The Forensic Science Laboratory report, which is at Ex.P16,

further go to establish that the said M.O.1 which was sent to

them along with other articles, for its chemical examination

revealed that the sharp edge blade of the axe was stained

with blood and that stain was human blood. Apart from that

the dress materials said to have been worn by the deceased

were also examined by the Forensic Science Laboratory and

it has noticed the existence of human blood on all other dress

materials also. Therefore, the axe which P.W.1, P.W.5 and

P.W.8 found in the hands of the accused and which axe, P.W.5

has specifically stated was attempted to be held by him in

order to prevent the accused barging the second blow upon

the accused, has proved that said weapon is used by the accused Crl.A.No.100217/2019

in committing the death of the deceased. The evidence of

P.W.1, P.W.5, and P.W.8, coupled with the medical evidence

and Forensic Science Laboratory report and also more

importantly, the undisputed evidence of this P.W.1, P.W.5

and P.W.8 that the accused had grudge against the deceased

alleging that he could not get the proper share in the

partition of the family properties would make it clear that the

accused has committed the said act only with an intention to

murder the deceased.

19. The defence of the accused through out was the

general denial. As observed above, in the cross-examination

of all the witnesses, except making denial suggestions to the

witnesses the accused could not elicit any statement from

any of the witnesses which could able to shaken the

credibility of the evidence of prosecution witnesses and

introduce any element of doubt in the case of the

prosecution.

20. P.W.5 in his evidence has stated that, in the

incident, his dress material was sustained with blood and Crl.A.No.100217/2019

moreover, while shifting the injured from the place of

incident to the District Hospital also, since he was holding the

injured, his clothes were further blotted with blood. The said

evidence no doubt clearly goes to show that the clothes worn

by P.W.5 also stained with blood. No doubt, the prosecution

has not sent those clothes for their chemical examination,

however, the mere non-subjecting those clothes for chemical

examination through Foreign Science Laboratory would not in

any way diminish the evidentiary value of the other credible

witnesses placed by the prosecution before the Sessions

Court. As such, the argument of the learned counsel for the

appellant that the non-submission of the clothes worn by

P.W.5 would make the case of the prosecution a doubtful one

is not acceptable.

21. Similarly, the prosecution admittedly has not

seized the Maruthi omni van in which the injured was said to

have been shifted to the hospital. The learned counsel for

the appellant in his argument also submitted that non seizure

of the said vehicle also makes the prosecution case a weaker Crl.A.No.100217/2019

one. The said argument is also not acceptable for the reason

that, no where the accused has denied that the injured was

shifted to the hospital in a Maruthi omni van. As such also,

the seizure or non seizure of the said Maruthi omni van

would in no way affect the case of the prosecution because

the said vehicle would have no material importance in

establishing or altering the case of the prosecution in any

manner.

22. The arguments of the learned counsel for the

appellant that since P.W.8 does not specifically mention the

exact timing of the alleged offence also weakens the case of

the prosecution, is also not acceptable for the reason that

P.W.8 has stated that the incident has taken place between

2.00 a.m to 3.00 a.m. It is nobody's case that the incident

has taken place either prior to the said timing or subsequent

to on the ill-fated day i.e. on 06.09.2016. The other two

important material witnesses i.e. P.W.1 and P.W.5 have also

stated that the incident has taken place at about 2.00 a.m in

the early hours of 06.09.2016. Even, the complaint at Ex.P1 Crl.A.No.100217/2019

also mentions the same. In that regard, merely because

P.W.8 does not say the exact time, but, says that it is

between 2.00 a.m to 3.00 a.m, would not either lessen the

credibility of the evidence nor adversely affect the case of the

prosecution by weakening it.

23. The last point of argument of the learned counsel

for the appellant was that a false case has been foisted

against the accused as admittedly the accused was not happy

with the partition and that a civil dispute was pending

between the parties. He also submitted that there is no

uniformity in the evidence of P.W.1, P.W.5 and P.W.8.

Except stating that there was a civil dispute between

the parties, the accused has neither suggested to any of the

witnesses as to what that civil litigation is for and what type

of civil dispute the parties had between them. On the other

hand, the case of the prosecution is that accused was not

happy with the share that has gone to his family in a family

partition. Therefore, in the absence of any materials placed

before the Court, it cannot be assumed that the complainant Crl.A.No.100217/2019

and her family had grudge against the accused and as such,

a false case has been foisted against them.

Regarding the alleged non-uniformity in the evidence of

P.W.1, P.W.5 and P.W.8 the only alleged variation that has

been brought to the notice of the Court by the learned

counsel for the appellant is that P.W.1 in her evidence has

stated that at the time of incident, she was sleeping in pooja

room, whereas, P.W.5 has stated that she was sleeping in a

bedroom. The said variation is too minor to affect the case

of the prosecution in any manner. Ultimately, it is for P.W.1

to say where she was sleeping. She has stated that she was

sleeping in pooja room. The sketch at Ex.P.17 also goes to

show that pooja room, bedroom and the hall are all attached

to each other and hall was facing both the living room of the

deceased as well as the pooja room. Therefore, the said

variation being too trivial is not sufficient to suspect the case

of the prosecution.

24. Thus, the evidence placed by the prosecution unambiguously

beyond reasonable doubt and clearly go to show that the deceased Crl.A.No.100217/2019

Jagadishagouda Patil was a resident of Hirebasur village and

that he ended in a homicidal death in the early hours

between 2.00 a.m to 2.30 a.m on the day 06.09.2016 in his

house and the said death was culpable homicide amounting

to murder which is committed by none other than the

accused/appellant herein. It is considering the evidence

placed before it in its proper perspective, since the trial Court

has held the accused guilty of the alleged offence and also

has awarded the sentence which is proportionate to the

gravity of the proven guilt, we do not find any reason to

interfere with the said judgment.

25. Accordingly, we proceed to pass the following:

ORDER

The Appeal stands dismissed as devoid of

merits.

The judgment of conviction dated 12.03.2019

and order on sentence dated 14.03.2019

passed by the learned I Additional District and Crl.A.No.100217/2019

Sessions Judge at Haveri in S.C No.5/2017,

stands confirmed.

Registry to transmit the copy of this judgment along

with the Sessions Judges Court records to the concerned

Sessions Judges Court without delay.

Sd/-

JUDGE

Sd/-

JUDGE

UN