Sri Gangaraju vs The State Of Karnataka
2022 Latest Caselaw 3480 Kant

                                           CRL.A.No.167/2017


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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF MARCH 2022

                        BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

           CRIMINAL APPEAL NO.167/2017
BETWEEN:

SRI GANGARAJU
S/O GANGAPPA
AGED ABOUT 36 YEARS
R/AT MALLASANDRA VILLAGE
DODDABALLAPUR TALUK - 561 203
BANGALORE RURAL DISTRICT               ... APPELLANT

(BY SRI.KHADRI S A, ADV.)

AND:

THE STATE OF KARNATAKA
REPRESENTED BY ITS HEAD OFFICER
HOSAHALLI POLICE STATION
DODDABALLAPUR TALUK - 561 203
BANGALORE RURAL DISTRICT               ... RESPONDENT

(BY SMT.RASHMI JADHAV, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(3)
(A) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED
30.12.2016 AND SENTENCE DATED 03.01.2017 PASSED BY THE
IV   ADDITIONAL     DISTRICT    AND   SESSIONS   JUDGE,
DODDABALLAPURA IN S.C.NO.10015/2015-CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 304 AND 201 OF IPC.

     THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING   THIS  DAY,  THE   COURT   THROUGH VIDEO
CONFERENCE DELIVERED THE FOLLOWING:
                                                CRL.A.No.167/2017


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                        JUDGMENT

Aggrieved by the order of conviction and sentence

passed against him, the accused in S.C.No.10015/2015 on

the file of the IV Addl. District and Sessions Judge,

Doddaballapur has preferred the above appeal.

      2.    The     appellant     was       prosecuted       in

S.C.No.10015/2015 for      the   offence   punishable    under

Sections 302 and 201 of IPC on the basis of the charge

sheet filed by Hosahalli Police in Crime No.83/2014 of their

Police Station.

3. For the purpose of convenience, the parties will

be referred according to their ranks before the trial Court.

4. The case of the prosecution in brief is as

follows:

(i) PW.5 Govindaraju is the elder brother of

Papamma. That the deceased Papamma @ Lakshmamma

was married to one Hanumaiah about 20 years prior to

December 2014. About 2 to 3 years after the marriage he CRL.A.No.167/2017

died. Therefore she returned to her parental house and

lived with her parents. After four to five years, Papamma

started living in Singayyanapalya village and developed

relationship with Puttaramaiah and lived with him. Out of

such cohabitation, they begot a son and PW.7 the

daughter. Even Puttaramaiah died. Therefore Papamma

along with her children shifted to Mallasandra. Herself and

the accused developed live-in relationship. Papamma, the

accused and PW.7 were living together.

(ii) In the workplace, Papamma used to be close

with other male persons, therefore, the accused was

suspecting her fidelity and there used to be quarrels

between them. On 18.12.2014 in the evening Muniraju

and Narayan visited the house of Papamma and had liquor

with her. By the time the accused returned home they

left. Regarding that matter the accused assaulted

Papamma. She was about to leave the house packing her

clothes. The accused chased her and assaulted her with

M.O.6 wooden bar. Papamma suffered grievous injuries on

her leg and other parts of the body and started to bleed.

CRL.A.No.167/2017

Then he brought her back to the house. PW.7 was present

all along the incident.

(iii) Then the accused secured the motorbike of

PW.3 his cousin brother representing that PW.7 is injured

and she has to be taken to the hospital on the said bike.

He took Papamma to the clinic of PW.4 a local doctor.

Having regard to the nature of injuries PW.4 declined to

treat her and asked the accused to shift to major hospital.

On the way she succumbed to the injuries. The accused

laid the dead body under a tree, went back and returned

the motorcycle to PW.3. After two days the dead body

started decomposing and emanating foul smell. Therefore,

the accused buried the dead body in the nearby dry land of

Muddaveerappa and left the village.

(iv) On 21.12.2014 PW.5 visited the house of the

deceased and enquired PW.7 about the deceased. PW.7

revealed the incident to PW.5. On such information, he

filed complaint as per Ex.P4 before PW.13 the PSI of

Shivalli Police Station. On the basis of Ex.P4 PW.13

registered the FIR against the accused as per Ex.P21.

CRL.A.No.167/2017

Then the accused was arrested. On the basis of his

voluntary statement, the place where the dead body was

buried, was discovered and Investigating officer on giving

requisition to PW.16 Taluka Executive Magistrate got the

body exhumed under the mahazar Ex.P5 in the presence of

PW.10 the doctor. PWs.6 and 8 are the mahazar

witnesses. Then PW.16 conducted the inquest mahazar on

the dead body as per Ex.P29.

(v) Thereafter PW.10 conducted the Post-mortem

on the dead body and submitted PM report as per Ex.P22.

On the basis of the voluntary statement of the accused,

spot mahazar was conducted in the house of the accused

and the blood stained clothes of the accused and victim

were recovered. On the basis of such voluntary statement

the weapon of offence was recovered under the mahazar

Ex.P12 in the presence of PW.6 the panch witness. The

vehicle used in the commission of the offence by the

accused was seized under the mahazar Ex.P16 in the

presence of PW.6, the mahazar witness. On conducting

investigation the police filed the charge sheet.

CRL.A.No.167/2017

5. Since the accused disputed the charges and

claimed trial, he was tried by the trial Court for the

charges punishable under Sections 302 and 201 of IPC. In

support of the prosecution PWs.1 to 19 were examined and

Exs.P1 to 47 and M.Os.1 to 13 were marked. The accused

was examined under Section 313 of Cr.P.C. He did not

lead any defence evidence.

6. The trial Court on hearing the parties by the

impugned judgment and order convicted the accused for

the offence punishable under Sections 304 and 201 of IPC.

The trial Court held that the accused caused the death of

the victim by assaulting her. The trial Court further held

that though he had no intention to commit the murder, he

had the knowledge that such assault may cause death.

Therefore, he was not convicted for the offence under

Section 302 IPC. Further the trial Court by the impugned

order convicted and sentenced the accused as follows:

 Sl.    Offences Under
                            Sentence       Fine Amount   Default Sentence
 No.        Section
 1.    304 of IPC        SI for 10 years    10,000/-     SI for 2 years
 2.    201 of IPC        SI for 1 year       1,000/-     SI for 30 days
                                                    CRL.A.No.167/2017

Submissions of Sri S.A.Khadri, learned counsel for the appellant:

7. The accused has no right hand. Therefore, the

theory of he assaulting and causing her injuries is

improbable. There is delay in filing the complaint. The

material witnesses have not supported the case of the

prosecution. The recovery mahazar witnesses were not

independent witnesses. The evidence of solitary eye

witness was not credible. There were lot of contradictions,

omissions and commissions in her evidence. The witness

was tutored. M.O.6 was not sufficient to cause the injuries

alleged by the prosecution. The victim had suffered the

injuries accidentally and they were not homicidal injuries.

As per the prosecution itself, the accused took care of the

deceased and her children for 2 years, therefore, there

cannot be any intention for him to kill her. As per the

prosecution case itself, there are many mitigating

circumstances. Therefore, the sentence of imprisonment is

disproportionate.

CRL.A.No.167/2017

Submissions of Smt.Rashmi Jadhav, learned HCGP

8. PW.7 being the daughter of the deceased her

presence at the scene of offence with accused and

deceased is natural. Sine the time of filing the complaint,

she has implicated the accused as the assailant. Her

evidence was corroborated by the evidence of PW.19 the

Judicial Magistrate who recorded her statement. That was

further corroborated by the medical evidence and the

evidence of PWs.3 and 4 and other witnesses. When the

deceased was living with the accused in his house, he

should explain her death. The fact of he not intimating the

relatives of the deceased and not informing the police

about her death shows his involvement in the case. The

other circumstances like motive, recovery of dead body,

weapon of offence and other incriminating material were

proved. The accused was not totally disabled. As per the

evidence, he was working and he has minor disability in his

right hand. Therefore the impugned judgment and order of

conviction do not call for interference.

CRL.A.No.167/2017

9. Having regard to the submissions of the both

side and perusal of the material on record the question

that arise of consideration is

"Whether the impugned order of conviction and

sentence is sustainable in law ?".

Analysis:

10. At the outset, it has to be stated that the

accused did not dispute the relationship between himself

and deceased and between deceased, PW.7 and PW.5. He

did not dispute that he lived with deceased and her

children for two years prior to the incident. He also did not

dispute the death of the victim and the injuries on her

dead body. His only contention was that the said injuries

were accidental one.

11. In the cross-examination of the witness as well

as in his examination under Section 313 of Cr.PC he

claimed that there was a nala near the house, on the date

of the incident when he returned home he found three

persons going outside the house and liquor in his house.

CRL.A.No.167/2017

His further defence is that he found the victim crying from

the nearby nala and he brought her back on the vehicle of

PW.3 his uncle. He tried to shift the injured to the hospital,

in the middle of the road the fuel exhausted and she died

on the way. He also admitted PW.7 accompanying them

during all those events. He claimed that on the way she

died. Therefore, he brought back the body and laid on the

slab of the village, informed the villagers and later he

cremated the dead body along with the villagers.

Therefore, the prime question that arises for consideration

is whether the death was homicidal or accidental.

12. The case of the prosecution was based on

i) The evidence of PW.7 the eye witness

ii) The circumstance of motive

iii) The circumstance of recovery of dead body

iv) Recovery of weapon of offence

v) Recovery of bloodstained clothes of the

deceased.

CRL.A.No.167/2017

vi) The medical evidence regarding cause of

death.

vii) The evidence of PWs.3 and 4 the owner of the

bike and the village doctor to whom the accused took the

deceased for the treatment.

13. As rightly observed by the trial Court, when

there is eye witness to the incident, the circumstantial

evidence even if it is weak takes a back seat.

So far as delay in filing of the complaint:

14. Admittedly, the deceased was living with the

accused in a far off place from her parental house. The

material on record shows that virtually she was an orphan.

She had to take shelter initially with one Puttaramaiah and

later with the accused because of her social and financial

condition. The only person who was living with her at the

time of the incident was PW.7 aged 7 years. The evidence

on record further shows that the deceased, accused and

PW.7 lived at several houses as temporary arrangements.

The evidence on record shows that even after burying the CRL.A.No.167/2017

dead body the accused took care of PW.7. Such child

informing others or going to police station and filing the

complaint is beyond the imagination of an ordinary prudent

man. It is only when PW.5 visited their house and enquired

PW.7, the incident came to light. Soon thereafter he has

filed the complaint on 21.12.2014. Therefore the trial

Court rightly held that the said delay does not demolish

the case of the prosecution.

So far as inability of the accused to inflict such injuries:

15. The evidence on record shows that the accused

had disfigured right forehand. However, the suggestion

made by him to PW.7 and his statement under Section 313

of Cr.PC shows that he was working in Jelli Crusher unit.

He was doing Jelli Crusher work also. Therefore there is no

merit in the contention that he was incapable of

performing any work much less assaulting the victim.

So far as PW.7, solitary eyewitness:

16. The complaint was filed on 21.12.2014 at 5.45

p.m. The Investigating Officer got the statement of PW.7 CRL.A.No.167/2017

recorded under Section 164 Cr.P.C on 31.12.2014. In her

statement she implicated the accused as the author of the

death. She also narrated the incident in the order of

events. Recording of such statements was proved by the

evidence of PW.19. Much was sought to be made referring

to the cross-examination of PW.7. In the chief-examination

of PW.7, she spoke according to the prosecution version.

She also spoke about the accused taking her and the

victim on the motor bike to PW.4 the doctor and again

coming back and her mother dying on the way. She further

spoke about the accused keeping the dead body under the

tree for two days and burying her and thereafter, he going

for the work. She also identified M.O.6.

17. It is no doubt true in the cross-examination

she said on that day morning the public prosecutor and the

sister of the school told her what is to be deposed before

the Court and she deposed accordingly. The defence

counsel himself suggested in the cross-examination of

PW.7 that there was quarrel between the deceased and the CRL.A.No.167/2017

accused before the incident in question. He also suggested

that on the day of the incident, two persons came to the

house and consumed the liquor and on noticing the arrival

of the accused they ran away. He himself suggested that

the accused enquired with her mother about those

persons, in that regard quarrel took place between them.

He also suggested that during that quarrel her mother

packed up her clothes and tried to run away.

18. PW.7 admitted all those suggestions and

supported the case of the prosecution with regard to

motive. She also admitted the suggestion that in the

process of running she fell down, therefore herself and

accused shifted her to the hospital. He himself suggested

her about he taking her to the hospital and due to the

exhaustion of the fuel in the vehicle, they coming back and

laying the body of her mother on the platform of peepal

tree, they were all admitted. It is material to note that in

the chief-examination she clearly implicated the accused

as the assailant of her mother. She says the accused CRL.A.No.167/2017

assaulted on the legs of his mother with MO.6 and caused

fractures etc.

19. The prosecutor treated her as hostile witness.

Even in the cross-examination she admitted the manner in

which the accused assaulted her mother. When she gave

go-by to the cross-examination by the defence Counsel,

the Court to get the clarity asked her certain questions and

got the answers for the Court questions. She said that her

mother died due to the assault by the accused by Ragi Ball

bar. Therefore, even if there were some inconsistencies in

her evidence, the trial Court did not find them fatal to the

prosecution case.

20. Though PWs.1 and 2 turned hostile regarding

the motive aspects, the suggestions made by the accused

to PW.7 themselves proved the circumstances of motive.

Further the evidence of PW.1 was corroborated by the

evidence PW.3 the owner of the bike and PW.4 the doctor

who declined to treat the victim. PW.3 is none else the

uncle of the accused. He deposed that during the night of CRL.A.No.167/2017

the incident the accused borrowed the bike representing

that PW.7 has suffered injuries and she has to be taken to

the hospital. If at all, the victim suffered accidental

injuries and she was to be taken to the Hospital, there was

no reason for the accused to borrow bike on the false

pretext of taking PW.7 to the hospital. That conduct of

accused also counts. PW.3's evidence with regard to the

accused borrowing the bike on the false pretext of getting

treatment for PW.7 and then returning the same in the

morning went un-controverted.

21. PW.4 local Doctor deposed that on the date of

the incident at 12.00 midnight, accused along with one girl

and woman came on motorbike. He further deposed that

accused represented that woman suffered injuries by

stumbling on the wire and requested to treat her. He

further deposed that when he went and saw, the victim

was bleeding and blood had fallen on the ground.

Therefore he asked the accused to take her to major

hospital. Said evidence of PW.4 was not impeached in his CRL.A.No.167/2017

cross-examination. Thereby the evidence of PW.1 about

the accused taking the injured victim to the hospital on the

bike of PW.3 was corroborated by the evidence of PWs.3

and 4.

22. The evidence of PW.1 was further corroborated

by the circumstances of recovery of dead body. PW.10 the

doctor, PW.16 the Tahsildar, PWs.6 and 8 are the

witnesses to Ex.P5 the recovery mahazar. Ex.P5 shows

that the accused showed the place where the dead body

was buried. They further deposed that on digging there,

the dead body was found. PWs.6, 8, 10 and 16 were all

independent/official witnesses. They had no animosity

against the accused. Their evidence with regard to the

discovery of dead body at the instance of the accused was

not impeached.

Reg: Nature of death:

23. The fact that PW.10 conducted the Postmortem

examination on the dead body at the spot was not

disputed. After conducting the postmortem examination he CRL.A.No.167/2017

issued postmortem report as per Ex.P22 and his opinion as

per Ex.P24. As per his evidence there were compound

fractures on the left leg tibia bone between upper one-

third and lower one-third of tibia bone and fractured

fragments were seen. Second injury was compound

fracture of right leg tibia bone upper one-third and lower

two-third of tibia and there was horizontal and vertical slit.

He states that both injuries were ante mortem. The death

was due to hemorrhage shock secondary to the fracture of

both tibia bone. He also gave opinion that such injuries

would be caused if the victim is assaulted with M.O.6.

24. As already pointed out, the accused himself

suggested that the victim died due to injuries, but they

were accidental in nature. The medical evidence with

regard to the nature of the injuries was corroborated by

the evidence of PW.7 the eye witness. Therefore, there

was no reason to discard the evidence of PW.10 regarding

the cause of death or nature of injuries.

CRL.A.No.167/2017

25. The weapon of offence M.O.6 and bloodstained

clothes were seized at the instance of the accused. Those

circumstances were proved by the evidence of PW.12 the

panch witness, Investigating Officer, mahazar witnesses to

Ex.P11 and 12. Similarly circumstance of seizure of bike by

the evidence of PW.6 and PW.3 was also proved. In the

ordinary course, the accused should have informed to the

relatives or villagers, instead after burial of the dead

body, he leaves the village. The aforesaid circumstances

coupled with the evidence of eye witness of PW.7 rightly

led the trial Court to hold that the accused is the author of

the death and buried the dead body to screen the

evidence of the offence.

Reg: Conviction:

26. The circumstance of the accused taking the

victim to the hospital and admitting to get her treated

persuaded the trial Court to accept that there was no

intention on the part of the accused to commit her murder,

therefore Section 302 of IPC does not attract. However,

having regard to the gravity of the injuries, the trial Court CRL.A.No.167/2017

held that the accused had the knowledge that such assault

or injuries are likely to cause death of the victim.

Therefore, the case falls under Part-II of Section 304 of

IPC.

27. The trial Court on sound appreciation of the

evidence supplying sound reasons has convicted the

appellant for the aforesaid offence. This Court does not

find any reason to interfere with such order of conviction.

Reg: Sentence:

28. So far as the sentence, the punishment

prescribed for the offence falling under Part II of Section

304 of IPC is imprisonment of either description for a term

which may extend ten year, or with fine or with both. The

trial Court has sentenced the accused for maximum

prescribed period of sentence.

29. At the time of the offence, accused was aged

about 34 years. He had partial physical disability. Despite

that he had given shelter to the deceased and PW.7.

Further on assaulting the victim he did all efforts to get her CRL.A.No.167/2017

treated. These were the mitigating circumstances against

the accused. He was arrested on 22.12.2014. Since then

he is under detention. Thereby he has already undergone

imprisonment for more then seven years two months.

Except this case, he has no other criminal antecedents.

30. Having regard to the aforesaid facts and

circumstances this Court finds that it is just and

appropriate to confine the sentence of imprisonment to the

period of detention already undergone by him.

ORDER

The appeal is partly allowed.

The impugned order of conviction is hereby

confirmed. The impugned order of sentence for the offence

under Section 201 of IPC is confirmed.

The impugned order of sentence of imprisonment for

the offence punishable under Part II of Section 304 of IPC

is modified. The same is confined to the period of

detention already undergone by the appellant.

CRL.A.No.167/2017

The order with regard to the sentence of fine,

disposal of property and set off are hereby maintained.

Subject to the deposit of fine amount, the accused

shall be set at liberty forthwith if his detention is not

required in any other case.

Sd/-

JUDGE

AKC