Karnataka High Court
Sri. Mudukappa S/O Siddappa vs The State Of Karnataka on 8 June, 2022
Bench: K.S.Mudagal, M.G.S. Kamal
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CRL.A No. 100153 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF JUNE, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 100153 OF 2021 (C-)
BETWEEN:
SRI. MUDUKAPPA S/O SIDDAPPA
AGED ABOUT 38 YEARS,
OCC. LABOURER,
R/AT K. SUGURU VILLAGE,
SIRUGUPPA TALUKA,
BALLARI DISTRICT-583101
CURRENTLY HOUSED UNDERGOING
SENTENCE OF CONVICTION AND
NUMBERED CTP NO.13173,
CENTRAL PRISON, BALLARI.
... APPELLANT
(BY SRI. MRUTYUNJAY TATA BANGI.,ADVOCATE)
AND:
THE STATE OF KARNATAKA
R/BY THE CIRCLE INSPECTOR OF POLICE
SIRUGUPPA, BALLARI DISTRICT-583101
AND R/BY THE ADDL. STATE PUBLIC
PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
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CRL.A No. 100153 of 2021
(BY SRI V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE ORDER OF CONVICTION DATED
21/01/2021 AND SENTENCE DATED 23/01/2021 PASSED BY
THE PRL. DISTRICT AND SESSIONS JUDGE, BALLARI AT
BALLARI IN SC NO.50 OF 2018 CONVICTING THE APPELLANT
UNDER SECTION 302 AND 201 OF IPC FOR LIFE AND ACQUIT
THE APPEAL BY ALLOWING THE PRESENT APPEAL.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the order of conviction and sentence passed
against him the accused in S.C.No.50/2018 on the file of the
Principal District and Sessions Judge, Ballari, has preferred this
appeal.
2. The appellant was the sole accused in SC
No.50/2018. For the purpose of convenience, the parties will
be referred to henceforth according to their ranks before the
trial Court.
3. The accused was prosecuted in SC No.50/2018 on
the file of the Principal District and Sessions Judge, Ballari, on
CRL.A No. 100153 of 2021
the basis of the charge sheet filed by Siruguppa police, in Crime
No.28/2018 of their police station. Crime No.28/2018 was
registered against the accused on the basis of the complaint of
his father Siddappa (PW1) as per Ex.P1.
4. The case of the prosecution in brief is as follows:-
The accused was ill-treating his first wife Peddamma
physically and mentally. Being unable to withstand his ill-
treatment, she returned to her parental house with her
children. About 5 months prior to January 2018, accused
came to the house of PW1, picked up quarrel with his younger
brother Veeresh, alleging that he has illicit relationship with his
second wife Lakshmi and assaulted him. The accused
threatened Veeresh that he will kill him. Being scared of him
Veeresh left his home and was living in the relatives' house and
at Bangalore and doing some work in Bangalore. On
23.1.2018, Veeresh had returned to the village, PW1 advised
him to return to Bangalore on account of threats of the
accused. On learning that the victim was sleeping in the house
of his friend PW14 situated in Benchi camp, the accused barged
into the said house, dragged Veeresh out of the house and
CRL.A No. 100153 of 2021
started quarreling with him. PW5 advised them not to quarrel
there and to go to their village. The accused forcibly took the
victim towards their house in Sugur. On the way near the land
of one Bhangi Muttamma, when Veeresh tried to escape, the
accused felled him to the ground and assaulted on his head
with MO8-the chopper caused him grievous injuries. At 2.00
am, he took the injured-Veeresh to the house of PWs.1 and 2,
removed his blood stained clothes. On learning about the
incident, PW7 came to the house and he informed PW.1 and
PW3 about the incident. PW3 rushed to the house of PWs.1
and 2. The accused confessed before PWs.2, 3 and 7 that he
has assaulted the victim. Then PW3 and accused shifted the
injured to Siruguppa hospital and from there to VIMS hospital,
Ballary. In the hospital, the accused forced the victim to state
before the Doctor that he has suffered injuries due to fall from
roof of the house. The injured succumbed to the injuries on
25.1.2018 at 4.30 pm. Thereafter, PW1 filed complaint as per
Ex.P1. On the basis of the complaint EX.P1, PW18 registered
FIR as per Ex.P23, conducted the investigation and filed the
charge sheet. During the course of investigation, on the basis
of voluntary statement of the accused and at his instance the
CRL.A No. 100153 of 2021
weapon of offence and other incriminating materials were
seized. Ultimately, accused was charge sheeted for the
offences punishable under Sections 302 and 201 of IPC.
5. As per the prosecution, the scene of offence were
three places:-
i) House of PW5 from where the victim was dragged.
ii) The land of Bhangi Muttamma where the accused
assaulted the victim.
iii) The house of PWs.1 and 2 where the accused brought
and dropped the victim.
6. The case of prosecution was based on:
i) The circumstance of motive;
ii) The evidence of PW5 witness to last seen
circumstance;
iii) The evidence of res-gestae witnesses PW2, PW5
and PW7,
CRL.A No. 100153 of 2021
iv) Extra judicial confession made before PWS.2, 3 and
7;
v) The dying declaration of the victim before PW1;
vi) Medical evidence;
vii) The circumstance of recovery of the incrementing
materials,
viii) The evidence of the police/official witnesses;
7. The trial Court on hearing the parties, by the
impugned judgment and order convicted the appellant-accused
for the offences punishable under Sections 302, 201 of IPC and
sentenced him as follows:
Offence Imprisonment Fine In default
sentence
302 IPC RI for life Rs.25,000/- RI for two years
201 IPC RI for seven Rs.25,000/- SI for two years
years
8. The trial Court held that the circumstances of
motive, extra judicial confession, dying declaration and the role
of the accused was proved by the evidence of prosecution
witnesses beyond reasonable doubt. The trial Court further
held that the accused failed to probabalise his defence that the
CRL.A No. 100153 of 2021
victim had fallen from the roof and suffered the injuries.
Ultimately, the trial Court held that the accused after
committing the offence of murder has tried to screen the
evidence of offence, thus, convicted and sentenced him as
aforesaid.
9. Shri Mrutyunjaya Tata Bangi, learned counsel re-
iterating the grounds of appeal submits that the alleged eye
witness-PW14 did not support the prosecution case. Therefore,
the case rests only on the circumstantial evidence. He further
submits that the victim himself gave history of fall from the
roof and as per the medical evidence-Ex.P24, the victim was
not in a position to give statement. Therefore, the trial Court
committed error in relying on the evidence of PW1, regarding
dying declaration. He further submits that the sister's conduct
of not going to hospital directly is unnatural, the trial Court
ignored the delay in filing the complaint which indicates the
scope for false implication. According to him, the trial Court
has committed a serious error in appreciation of the evidence in
convicting the appellant.
CRL.A No. 100153 of 2021
10. Controverting such arguments, the learned
Additional S.P.P. justifies the impugned order of conviction and
sentence on the ground that PWs.1 and 2 are the parents of
the accused himself in unequivocal terms speak about his
involvement in the crime. Their evidence was further
corroborated by the evidence of other witnesses. Despite
PW14 turning hostile, the chain of circumstance of motive,
dying declaration, extra judicial confession, the recovery of
incriminating materials was so complete that the same pointed
out to the only hypothesis of the guilt of the accused. He
further submits that the evidence on record shows that the
accused had brought the injured victim to his house.
Therefore, he had to explain how the injuries occurred, which
was not explained by him at the earliest point of time. Coupled
with that he did not set up the theory of fall in his examination
313 of Cr.P.C nor probabalise the said theory. At the first
instance, before his parents-PWs.1 and 2, brother-PW7,
brother-in-law-PW3 such history of fall was not given.
Therefore, the trial Court on proper appreciation of the
evidence has convicted and sentenced the appellant. He
CRL.A No. 100153 of 2021
submits that the said judgment and order does not warrant
interference of this court.
11. Having regard to the rival submissions, the point
that arises for consideration is "Whether the trial Court was
justified in holding that the charges against the accused
for the offences punishable under Sections 302 and 201
of IPC were proved beyond reasonable doubt?"
Analysis
12. In this appeal under Section 374 of Cr.P.C., the
Court has to examine whether the trial Court appreciated the
evidence in sound and sustainable manner. This Court has to
examine whether the trial Court assessed the evidence in an
objective manner?
13. Some of the admitted facts of the case are as
follows:-
PW1 is the father, PW2 is the mother, PW3 is the
brother-in-law, PW4 is the elder sister and PW7 is the elder
brother of accused and deceased Veeresh. Veeresh was the
youngest brother. The accused had married one Peddamma of
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CRL.A No. 100153 of 2021
Uttanuru village and had a son and daughter from the said
wife. Due to discard in the matrimonial life, Peddamma
returned to her parental house along with her children and she
did not return. About 5 years prior to January 2018, the
accused married one Lakshmi as his second wife. Out of that
marriage, they begot two daughters and one son. The accused
along with the second wife was residing in a separate house in
K.Suguru. Veeresh was living with his parents. On
23.01.2018, PW1 had gone to the house of his daughter PW4
situated at Mudenur village, PW2 was in the house. Ramesh
PW7 was living along with his family in another house in the
same village. During the intervening night of 23/24.01.2018,
the accused brought the injured Veeresh with heavy bleeding
injuries to the house of PWs.1 and 2. From there PW3 and
accused shifted the victim to Siruguppa hospital. From
Siruguppa hospital, victim was shifted to VIMS hospital, Ballary.
Victim succumbed to the injuries on 25.01.2018 at 4.30 pm.
14. In the light of such admitted facts, this Court has to
examine whether the circumstances set up by the prosecution
were proved beyond reasonable doubt.
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CRL.A No. 100153 of 2021
Reg: motive
15. According to the prosecution since five months prior
to the death of Veeresh, the accused started suspecting that
Veeresh had illicit relationship with his second wife Lakshmi,
therefore, five months back he had assaulted Veeresh and
being scared of that Veeresh had left the village. It is the
further case of the prosecution that Veeresh had come to
village and taking that opportunity, the accused committed the
offence.
16. PWs.1 and 2, the parents of accused, PW3 and PW7
the brother-in-law and the brother of the accused speak in
unison about the accused suspecting Veeresh having illicit
relationship with his second wife Lakshmi and in that
background committing the offence. The evidence of PWs.1 to
3, 7 and complaint-Ex.P1 show that prior to death of Veeresh,
accused had assaulted Veeresh on the ground that he has illicit
relationship with Lakshmi-the second wife of the accused. The
Evidence of PW1 and Ex.P1 further show that when PW1
attempted to intervene during such earlier attack, the accused
has assaulted even PW1-the father. Their evidence further
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CRL.A No. 100153 of 2021
show that Veeresh had escaped from the hands of accused and
accused had threatened that whenever he gets him, he will kill
him.
17. The evidence of PW1 and Ex.P1 further show that
being scared of the accused, Veeresh left the house and was
living in the houses of the relatives and in Bangalore, on
23.01.2018 he had come back to the village and due to the fear
of accused, he was sleeping in the house of PW14 in Benchi
camp.
18. PWs.1 and 2 being the parents and PW3 being the
brother-in-law, PW4, PW7 being the sister and brother had no
reason to make false imputations against the accused or
implicate him falsely in the case. The only reason elicited in
the cross examination for false implication is that the first wife
of the accused had filed a civil suit against PW1 and PW2
seeking properties, therefore, they have falsely implicated him.
19. The accused did not dispute the evidence of above
said witnesses that after begetting three children, he had
deserted his 1st wife. In the complaint it is alleged that accused
was battering his first wife and being unable to withstand that
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CRL.A No. 100153 of 2021
she left him and went to her parental house along with her
children. The said contents of the complaint were not
controverted in the evidence of PW1. Only to PW2 a suggestion
was made that they ill-treated his first wife and spoiled his
family life which she denied.
20. If the cruelty was only by the parents-in-law or the
siblings of the accused, there was no reason for the accused to
stay away from his first wife. He also did not dispute the
evidence of the witness that during the subsistence of his first
marriage, though had three children from the said marriage, he
married Lakshmi as second wife. That itself goes to show that
all was not well with the accused and he was a disturbing
personality.
21. The implication of the accused in the case was in no
way granting any relief to PWs.1 to 4 and 7 in the partition suit
filed by his first wife. Even if the accused goes to the jail, the
children of Ambamma were getting the share in the share of
the accused. The accused was incurring disqualification for
inheritance as per the Hindu Succession Act had he committed
the murder of his father. That was not the case here.
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CRL.A No. 100153 of 2021
Therefore, there is no merit in the contention that he was
falsely implicated in the case due to his first wife filing partition
suit against PW1 and others.
22. PW1 was aged 80 years, PW2 was aged 70 years.
At that age, it becomes hard to comprehend that they shield
real culprit if any to falsely implicate the accused for the
murder of their youngest son Veeresh. In the light of the
above facts and circumstances, it can be concluded that the
evidence of the prosecution with regard to motive
circumstances was cogent, consistent and acceptable.
Regarding extra judicial confession of the accused.
23. According to the prosecution on bringing the injured
Veeresh to the house of PWs.1 and 2, the accused confessed
before PW2-the mother and PW7-the brother that he has
assaulted Veeresh and on arrival of PW1, PW3 and PW7, she
revealed the same to them. PW2-the mother deposed that the
accused came home beating Veeresh and he had suffered
bleeding injuries on his body and head and accused himself
revealed that he had assaulted Veeresh with chopper. She
denied the suggestion that he has not confessed in that
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manner. PW7 also deposed about the accused confessing
before him that he assaulted the victim with chopper on the
head. PW2 and PW7 were not the strangers to the accused
and the deceased. There were no grounds to believe that such
confession before them was unnatural. Nothing was elicited to
them to discredit their evidence with regard to such extra
judicial confession. As already pointed out above, there was no
reason for them to falsely implicate the accused in the case.
Under the circumstances, it can be held that the circumstances
of extra judicial confession was proved beyond reasonable
doubt.
Reg: dying declaration and the conduct of the
accused regarding history of injury
24. According to the prosecution, the victim revealed to
PW1 that the accused assaulted him on his head with a chopper
and threats of accused made him to tell the doctor that he
suffered injuries due to fall from the roof. PW1 in his
deposition reiterated the said fact. The contention of the
accused is that as per Ex.P24 the prosecution's own document,
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the victim was not in a position to give statement, therefore,
PW1's evidence to that effect is unbelievable.
25. PW18-the PSI who received the complaint Ex.P1
and registered the FIR-Ex.P23 states that on 24.01.2018 Head
Constable Shri. Shrinivas issued requisition to the Doctor as per
Ex.P24 to certify about the condition of the victim to give
statement. Relying on that document, it is contended that on
24.01.2018 the victim was not in a position to give statement.
However, at the same breath it is the contention of the accused
that the victim himself gave the history before the doctor that
he suffered injuries due to fall. That goes to show that the
accused is trying to blow hot and cold together and his defence
about the history of fall is mutually destructive.
26. If Ex.P24 is to be accepted, then the contention of
the accused that victim gave the history of fall from the roof
cannot be accepted. Though the complaint is filed on
25.01.2018, PW1's evidence that he filed complaint as per
Ex.P1 was not disputed. In the complaint, PW1 has stated that
he reached his house on 24.01.2018 at 8.00 am and learnt
about the incident and the accused and PW3 shifting the victim
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to the Siruguppa hospital. He further states that he rushed to
the Siruguppa hospital only to learn that victim was shifted to
VIMS hospital and therefore, he reached VIMS hospital at 6.00
pm, and on enquiry the victim revealed about the accused
assaulting him and forcing him to give statement before the
Doctor that the injuries were due to fall. It is already observed
that PW1 being the father aged 80 years had no reason to
falsely depose against the accused his own son. On the other
hand, if at all, such defence of the accused regarding inability
of the victim to give statement is to be accepted then that
leads to the inference that it was the accused who gave the
history of fall. As per PW1 at the time of the incident he was
not at home, on reaching home he visited two hospitals and
then filed complaint. That statement was not denied. Thereby
the delay in filing the complaint stood explained.
Reg: Expert's evidence & circumstance of recovery
of incriminating material
27. According to the I.O. the articles shown at Sl.Nos.1
to 10 (MOs.1 to 10) the blood stained clothes of the accused,
deceased and the weapon of offence were seized during the
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CRL.A No. 100153 of 2021
investigation and sent to chemical analysis to RFSL, Kalaburagi
and on analysis, the report Ex.P31 was submitted. Ex.P31 was
admitted in evidence marked without any objection and as per
Section 294 Cr.P.C. that can be relied in evidence. The said
document shows that on all the aforesaid articles, the blood
belonging to 'B' group was found.
28. Then question is whether MOs.1 to 10 were the
clothes of the accused and the deceased and the chopper
produced at the instance of the accused? PW19-the I.O.
deposes that after the postmortem examination, the doctor
handed over MO9-the lungi, MO3- underwear and MO10-
bedsheet found on the dead body of the victim to CW22
Venkatesh the Police Constable and he brought and produced
them. PW19 further states that he seized them under the
mahazar Ex.P12 in the presence of CWs.17 and 18. In the
cross examination of PW19, the seizure of those articles and
that they belonged to the deceased were not disputed.
29. PW19 states that the accused led him and panchas
PW9 and PW12 to the house of PW1 and produced MOs.4 and
5, his blood stained lungi and shirt, MOs.1, 2 and 6-the blood
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stained shirt, pant and towel of the victim and MO8-the blood
stained chopper and they were seized under mahazar Ex.P5 in
the presence of panchas PWs.9 and 12. Though PW9 did not
support the proceedings under Ex.P5, PW12 supported the
seizure of the said articles. Except the suggestion denying such
seizure nothing could be elicited in the evidence of PWs.12 and
19 to disbelieve the said seizure at the instance of the accused.
PWs.12 and 19 denied the suggestions of the accused that
there was no such seizure and they were planted.
30. The evidence of PW19 that MOs.1 to 10 were sent
for FSL examination and evidence of PW20 that Ex.P31 was the
FSL report relating to those articles was not disputed. As per
Ex.P31 the blood found on MOs.1 to 10 was of 'B' group. That
goes to show that the blood group found on the clothes of the
accused, deceased and the weapon was one and the same.
That circumstance coupled with the oral evidence of PWs.1 to 3
and 7 the aforesaid circumstances connect the accused to the
crime.
31. The aforesaid facts and circumstances go to show
that the accused brought the victim with bleeding injuries to
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the house of PWs.1 and 2. Therefore, he had to explain how
such injuries occurred. His only defence in the cross
examination of the witnesses was that they were accidental
injuries which they denied. The accused does not state where
and how the alleged fall took place. In his examination under
Section 313 Cr.P.C., he does not whisper anything about any
such fall. Thereby he failed to explain the injuries as required
under Section 106 of the Evidence Act.
32. His other contention was that PWs.1 to 4 and 7 are
all interested witnesses. PWs.1 to 4 and 7 were the parents,
siblings and the brother-in-law not only of the victim, but of the
accused also. The suggestion that because of the case filed by
his first wife for partition, they have falsely implicated him in
the case is a far fetched idea.
33. The Hon'ble Supreme Court in the judgment in
Sucha Sing and Another Vs. State of Panjab1 has held that
relationship is not a factor to effect the credibility of the
witness. It was further held that more often a relation does not
conceal actual culprit and make allegation against an innocent
AIR 2003 SC 3617
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person and foundation has to be laid, if plea of false implication
is to be made. In this case, no such foundation was made.
The careful analysis of the evidence of the above said witnesses
coupled with the other material on record show that there is
ring of truth in the evidence of the said witnesses.
34. In Baleswhar Mahto and Another Vs. State of
Bihar and another2 the Hon'ble Supreme Court held that
minor variations between the medical evidence and ocular
evidence do not take away the primacy of the ocular evidence
unless the medical evidence completely rules out all
possibilities of injuries taking place in the manner narrated by
the witnesses.
35. The above analysis of the evidence goes to show
that the accused assaulted the victim with the chopper
suspecting that his second wife and victim have illicit
relationship with each other. It further shows that the accused
while admitting the victim to the hospital managed the
recording of false history of accidental injuries. The trial Court
on appreciating all the evidence, facts and circumstances in a
(2017) 3 SCC 152
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sound and sustainable manner by the impugned judgment and
order convicted and sentenced him. The same does not warrant
interference of this Court. However, the Court placed on record
able assistance rendered by Shri Mrutyunjaya Tata Bangi High
Court Legal Services Committee's Panel Advocate in the matter.
In the light of the above discussion, the following:-
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
Vmb
