Maruti S/O Yallappa Chunchanur vs The State Of Karnataka
2022 Latest Caselaw 4666 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

          DATED THIS THE 14TH DAY OF MARCH 2022

                        PRESENT

      THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

                          AND

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR


                  CRL.A.No.100369/2017
BETWEEN

MARUTI S/O YALLAPPA KARIGAR,
AGE 39 YEARS, OCC: AGRICULTURE,
R/O: CHUNCHANUR, TQ: RAMADURGA, DIST: BELAGAVI.
                                         .....APPELLANT
(BY SRI M.L. VANTI, AMICUS CURIAE)

AND

THE STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, BENCH DHARWAD,
THORUGH RAMADURG P.S.
                                      .....RESPONDENT
(BY SRI V.M. BANAKAR, ADDL. S.P.P.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., SEEKING TO PASS THE JUDGMENT SETTING ASIDE
THE JUDGMENT OF CONVICTION FOR OFFENCES U/S.302 OF IPC
DATED 28.04.2016 AND ORDER OF SENTENCE DATED
28.04.2016 PASSED BY THE II ADDL. SESSIONS JUDGE,
BELAGAVI, AT BELAGAVI IN S.C.NO. 110/2013 AND AN ORDER
OF ACQUITTAL BE PASSED IN FAVOUR OF APPELLANTS BY
ALLOWING THIS APPEAL.
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     THIS   APPEAL  HAVING    BEEN    HEARD   AND
RESERVED   FOR JUDGMENT ON 05.03.2022, THIS DAY,
RAJENDRA BADAMIKAR, J. PRONOUNCED THE FOLLOWING:

                              JUDGMENT

This appeal is filed by the appellant/accused No.1 under

Section 374(2) of Code of Criminal Procedure (hereinafter

referred to as 'Cr.P.C., for short) challenging the impugned

judgment of conviction and order of sentence passed by the II

Additional Sessions Judge, Belagavi, in S.C.No.110/2013,

dated 2304.2016 whereby the learned Sessions Judge has

convicted the appellant herein for the offence punishable

under Section 302 of IPC and imposed sentence of

imprisonment for life with fine of Rs.5,000/-.

2. For the sake of convenience, the parties herein

are referred to with their original ranks occupied by them

before the trial Court.

3. Brief factual matrix leading to the case is as

under:

That the deceased Yallawwa is the stepmother of

accused No.1 while accused No.2 is the second wife of

accused No.1 and accused No.3 is the mother of accused

No.1. It is the case of the prosecution that the daughter of

sister of deceased was given in marriage to accused No.1,

who is PW-7 and inspite of that accused No.1 had developed

relationship with accused No.2 and brought her to his house

and kept her there. It is the contention of the prosecution

that the accused No.1 used to ill-treat his legally wedded wife

Dyamavva frequently and deceased Yallawwa used to object

the same. In this regard, regularly verbal arguments used to

take place between them. It is the further case of the

prosecution that accused No.1 used to subject his stepmother

i.e., deceased to ill-treatment regularly and in this regard six

months prior to the incident, a panchayat was held and the

panchayatdars had adviced the accused No.1 and as such, he

was nurturing grudge against deceased.

It is the further case of the prosecution that on

14.11.2012 at about 8.30 p.m. at Chunchanur village in front

of the house situated in the land bearing Sy.No.266/1+5/B,

accused Nos.2 and 3 were quarrelling with the deceased

Yallawwa and at that time, the accused No.1 brought an axe

and when the deceased questioned him, he gave three blows

on her head by axe and also caused grievous injuries to her

right forehand. It is the further case of the prosecution that

the accused Nos.2 and 3 have abetted the accused No.1 in

causing her death and they have also caused bodily injuries

and also abused the deceased Yallawwa in filthy language.

Then PW-10, PW-11, PW-12 and PW-13 rushed to the spot

and pacified the dispute. It is also alleged that accused No.1

gave life threat to them by showing the axe and later on by

throwing the axe, he fled from the spot. The injured was

immediately shifted to Saundatti Hospital and later on she

was shifted to KIMS Hospital, Hubballi. But she succumbed

because of the injuries on 18.11.2012. The complainant, who

is the brother of the deceased, after getting admitted the

deceased to KIMS Hospital, has lodged the complaint on

15.11.2012. The Investigating Officer investigated the crime,

recorded the statements of the witnesses, drawn the mahazar

and ultimately submitted the charge sheet against three

accused for the offence punishable under Sections 302, 323,

504, 506 and 109 read with Section 34 of IPC. After

submission of the charge sheet, the learned Magistrate has

taken cognizance and accused were arrested and were

remanded to the judicial custody. The accused Nos.2 and 3

were later on enlarged on bail.

4. The learned Magistrate has furnished the copies of

the prosecution papers to the defence counsel as

contemplated under Section 207 of Cr.P.C. and then

committed the matter to the Sessions Court.

5. The learned Sessions Judge after securing the

accused, has framed the charge under Sections 302, 323,

504, 506 and 109 read with Section 34 of IPC against all the

three accused and they have pleaded guilty.

6. To prove the guilt of the accused, the prosecution

has examined in all 28 witnesses and has also got marked 46

documents at Exs.P-1 to P-46 and four material objects. After

conclusion of the evidence of the prosecution, the statement

of the accused under Section 313 of Cr.P.C. was recorded by

the learned Sessions Judge and explained the incriminating

evidence appearing against them in the case of the

prosecution. The case of the accused is of total denial and

they did not choose to lead any oral or documentary evidence

in support of their defence.

7. After having heard the arguments and after

perusing the oral as well as documentary evidence, the

learned Sessions Judge has acquitted accused No.2 and 3 for

the offence punishable under Sections 302, 323, 504, 506,

109 read with Section 34 of IPC. However, he convicted the

accused No.1 for the offence under Section 302 of IPC and

accordingly, imposed life imprisonment with fine of Rs.5,000/-

. Being aggrieved by the judgment of conviction, the accused

No.1 has filed this appeal.

8. Heard the arguments advanced by the learned

Amicus Curiae appearing for accused and learned Additional

State Public Prosecutor for the State.

9. Learned Amicus Curiae would contend that the

judgment of conviction and order of sentence is contrary to

law, evidence and facts as well as probabilities of the case.

He would further submit that the evidence of PW-1 and PW-4

disclose that they are the brothers of the deceased and are

interested witnesses while PW-3 is the husband of the

deceased and all the witnesses are interested witnesses. He

would also contend that the panch witnesses have not

supported the case of the prosecution and motive itself has

not been established as PW-7 who is the wife of accused No.1

has turned hostile. He would also contend that the register

pertaining to Government Hospital wherein the deceased was

first treated was not placed nor the doctor was not examined

before the Court which would create a doubt in the mind of

the Court. He would also contend that other neighbouring

witnesses who are alleged to be the eyewitness have turned

hostile and as such the trial Court has erred in only relying on

the interested evidence of PW-1 to PW-4 which is not

corroborated by the other independent witnesses. He would

also contend that no motive is established and hence, the

offence does not fall under Section 302 of IPC and at the most

it may fall under Section 304 (Part-II) of IPC. Hence, he

would submit that the judgment of conviction passed by the

trial Court is perverse, erroneous and capricious. Hence, he

would submit that it calls for interference by this Court and as

such he would seek for allowing the appeal by setting aside

the impugned judgment of conviction and order of sentence

passed by the trial Court.

10. Per contra, learned Addl. State Public Prosecutor

would support the judgment passed by the trial Court. He

would contend that PW-1 and PW-4 are the brothers of the

deceased while PW-2 is an independent witness. He would

also contend that PW-3 is the husband of deceased and father

of the accused No.1 and he had no occasion to give false

evidence against his own son and his evidence cannot be

ignored on the ground that he is interested witness. He would

also contend that evidence of PW-1 to 4 is again corroborated

by the medical evidence of PW-13 and Ex.P-14 and FSL report

at Ex.P-45 also corroborates this aspect. He would also

contend that the FSL report discloses that M.O.1 axe is

stained with 'O' human blood group and the accused is not

coming under exceptions of Section 302 of IPC as he has

caused more than one injury on the head as well as on the

right forehand which discloses his intention. He would also

contend that mere hostility of PW-7 itself is not a ground for

acquittal as PW-7 is not an eyewitness and evidence of other

witnesses cannot be ignored. Hence, he would contend that

there is sufficient material evidence and the trial Court has

rightly convicted the accused and imposed life imprisonment.

Hence, he would contend that the judgment of the trial Court

does not suffer from any infirmity so as to call for any

interference and as such prayed for dismissal of the appeal.

11. Having heard the arguments and after perusing

the records of the trial Court, the following points would arise

for our consideration:

1) Whether the prosecution has proved beyond all reasonable doubt that accused/appellant herein has assaulted deceased Yallawwa on 14.11.2012 at about 8.30 p.m. in front of his house in Chunchanur village causing fatal injuries to her which has resulted in her death in KIMS Hospital on 18.11.2012 and thereby committed an offence under Section 302 read with Section 34 of IPC?

2) Whether the judgment of conviction and order of sentence passed by the trial Court is perverse, erroneous and capricious so as to call for any interference by this Court?

12. It is to be noted here that the deceased is the

stepmother of the appellant/accused No1. Further it is also

important to note here that the accused Nos.2 and 3 were

acquitted and the State has not challenged the judgment of

acquittal as regards accused Nos.2 and 3. The accused No.3

is the mother of the accused No.1 and she is also the second

wife of PW-3 who is also the husband of deceased Yallawwa.

13. According to the prosecution, deceased Yallawwa,

as she could not give birth to child, after death of first child,

performed the marriage of PW-3 with accused No.3 and out of

the said wedlock, accused No.1 was born. It is the further

assertion that the daughter of sister of deceased Yallawwa

was given in marriage to accused No.1 who is PW-7 and the

accused No.1 used to ill-treat her and in such circumstances,

the deceased used to interfere and as such, they used to

quarrel. According to the prosecution, a panchayat was also

held six months earlier to the incident. In this regard, the

accused No.1 was nurturing grudge against the deceased for

having dragged him to panchayat. According to the

prosecution, on 14.11.2012 at about 8.30 p.m., in front of the

house of PW-3, the accused quarreled with deceased and

accused No.1 gave three brutal blows on her head and a blow

on her right forearm and later on she succumbed in the KIMS

Hospital on 18.11.2012. Though the learned Amicus Curiae

tried to dispute the homicidal death of the deceased and tried

to make out a case of medical negligence, the line of cross-

examination clearly discloses that he has only made a half-

hearted attempt in this regard. On the contrary, a defence

was set up that the deceased fell from the steps in the cattle

shed and sustained injuries.

14. PW-1 is the complainant as well as the brother of

the deceased. His evidence discloses that six months prior to

the date of incident, the accused No.1 had quarreled with the

deceased Yallawwa and elders of village have adviced him and

thereby he was nurturing grudge against the deceased

Yallawwa. He has also deposed that on 14.11.2012, at about

8.30 p.m. he had been to the house of the accused to invite

his sister and accused for tractor pooja and when he reached

the house, he heard hue and cry and noticed that accused

No.1 was quarreling with the deceased. He further deposed

that accused No.1 assaulted the deceased Yallawwa on her

head with axe and later on, in an ambulance, she was shifted

to Saundatti Hospital and then to KIMS Hospital, Hubballi and

on the next day he lodged a complaint as per Ex.P-1. He has

also specifically deposed that he has also shown the scene of

offence to the police wherein mahazar was drawn and the

M.O.1 was recovered. Though PW-1 was cross-examined at

length, nothing was elicited so as to impeach his evidence.

15. PW-2 is an eye-witness and a neighbour. He

deposed that one year and four months ago at about 8.30

p.m., he heard noise from the house of the accused. When he

rushed to the spot, quarrel was going on between the

deceased and accused No.1 and accused No.1 assaulted the

deceased with axe on her head by giving three blows and also

assaulted on her right hand. He further deposed that when

he tried to intervene to pacify the dispute, the accused No.1

did not heed to his request and later on he fled the scene of

the offence by leaving the axe there itself and later on PW-1

shifted the deceased in an ambulance to Saundatti Hospital.

Though this witness has partly turned hostile regarding the

intentional insult and provocation, as regards acts of accused

No.1, he has fully supported the case of the prosecution. This

witness was also subjected to intensive cross-examination but

nothing worthy was elicited by the defence counsel.

16. PW-3 Yallappa is the husband of the deceased,

father of accused No.1 and husband of accused No.3. He has

also specifically deposed that his first wife Yallawwa initially

gave birth to a female child Dropathi and said Dropathi died

when she was six months old baby and later on Yallawwa

remained issueless. He further deposed that in order to

continue the family generation, she performed his marriage

with accused No.3 and out of the said wedlock, the accused

No.1 was born and other four daughters were born. He has

also deposed that accused No.1 has also married to

Dyamavva but later on he married with accused No.2 Renavva

and Dyamavva was related to the deceased. He has also

specifically deposed that accused No.1 in this regard used to

abuse and assault his first wife Dyamavva and Yallawwa used

to intervene and advice the accused No.1 in this regard and

as such in this regard the accused developed animosity with

the deceased Yallawwa.

PW-3 in his further evidence deposed that on

14.11.2012, when he was in his house and accused No.1 was

quarreling with the deceased. At that time, accused No.1

assaulted the deceased with axe and deceased collapsed on

the ground. He further deposed that PW-1 summoned the

ambulance and immediately Yallawwa was shifted to

Saundatti Hospital and later on to KIMS Hospital and PW-1

has lodged a complaint as per Ex.P-1 and on the next day, a

mahazar was drawn and axe was seized from the spot. He

also deposed that on 18.11.2012 Yallawwa succumbed to the

injuries in the Hospital. This witness has undergone intensive

cross-examination by the defence counsel but his evidence is

also not impeached.

17. It is important to note here that the witness PW-3

is the husband of the deceased and accused No.3 and father

of accused No.1 also. He had no vested interest to give false

evidence. He is interested in both his two wives and his son

i.e., accused No.1 also. But his evidence discloses that he has

simply narrated the incident as it happened. His evidence is

quite natural. It is the contention of the defence counsel that

in order to gulp the property of accused No.1, he was falsely

implicated in this case. But it is to be noted here that no case

of acquisition of the property by him is made out by the

accused No.1. Admittedly, PW-3 himself was the prepositus

of the family and in such circumstance, the said ground holds

no water at all.

18. PW-4 is another brother of the deceased and he

has also deposed that about 2½ years back, he had been to

the house of the deceased for deepawali festival in order to

give sweets and at that time, the accused quarreled with

deceased and accused No.1 assaulted Yallawwa with axe on

her head by three times and gave life threat to others who

tried to interfere. His evidence is also corroborative evidence.

This witness was also subjected to intensive cross-

examination but nothing was elicited. The evidence of PW-1

to PW-4 is consistent and corroborative.

19. PW-5 and PW-6, eyewitnesses have turned hostile

and PW-7 has also turned hostile but PW-7 is not an

eyewitness and hostility of PW-5 and PW-6 alone cannot be a

ground to discard the evidence of PW-1 to PW-4. Especially

there is no reason for PW-3 to give false evidence against his

own son. PW-8 and PW-9 are the spot panchas. Though it is

argued that they have turned hostile, their evidence disclose

that initially they have supported the case of the prosecution

and immediately they gave a different version. However,

they have admitted the visit of the police at the spot and

again this is corroborated by the evidence of PW-1 and PW-3.

20. PW-10 and PW-11 have deposed regarding seizure

of bloodstained Saree of deceased as per Ex.P-7.

21. PW-12 is inquest pancha.

22. PW-13 Dr. Sunilkumar Biradar is the doctor who

conducted autopsy on the body of the deceased Yallawwa. He

deposed that there were external injuries on her head and his

evidence disclose that he noticed the following injuries:

1) C shaped surgically sutured wound of size 13

cms with 10 stitches present horizontally on

forehead.

2) Linear surgically sutured wound of size 11 cms

with 07 stitches present vertically onvertex.

3) Linear surgically sutured wound of size 05 cms

with 03 stitches present vertically on occipital

area 04 cms below injury No.2

4) Right humerus fractured at middle third.

5) Surgically sutured wound of sixe 09 cms with

05 stitches present on right heel.

23. He further deposed that there was skull-A linear

fracture of size 1 cm present at the frontal bone and brain

covered with sub arachnoid and sub-dural hemorrhage with

presence of blood clots in parietal bone. Hence, he opined

that the death is due to respiratory failure consequent to the

injuries to the brain. He has further deposed that in this

regard he has issued PM report as per Ex.P-14. The medical

evidence of PW-13 and the PM report Ex.P-14 corroborates

the evidence of PW-1 to PW-4. His evidence further discloses

that he has also examined M.O.1, axe produced before him

and opined that the injuries on the deceased may be caused

by the said axe and issued report as per Ex.P-16.

24. PW-14 has deposed regarding supply of electricity

in the said area during the relevant period and it is not the

defence that there was electricity disruption during the

relevant period.

25. PW-28 is the scientific officer of the RFSL and

deposed regarding the examination of the articles and noticed

bloodstains on article Nos.1, 2 and 4 with 'O' blood group.

Admittedly, article No.1 is axe and article No.4 is Saree.

Hence, her evidence is corroborative with the medical

evidence as well as evidence of PW-1 to PW-4.

26. Much arguments have been advanced by the

defence counsel regarding non-production of document

pertaining to first aid given to deceased at Saundatti Hospital

and non-examination of the doctor. But how it is relevant is

not at all forthcoming and there is a direct evidence of

eyewitness of PW-1 to PW-4. Further PW-2 is a neighbour

and PW-3 is the husband of the deceased and father of the

accused No.1. There is no reason for him to give false

evidence. There are no material contradictions elicited in the

evidence of PW-1 to PW-4 and minor variations are bound to

occur due to lapse of time.

27. Learned Amicus Curiae would further contend that

motive was not established since PW-7 has turned hostile. But

mere hostility of PW-7 is not a relevant factor as the accused

No.1 is her husband. Apart from that she is not an

eyewitness and she is only a hearsay witness. On the

contrary, PW-3 has specifically deposed that accused was ill-

treating PW-7 i.e., his first wife and deceased used to object

the same by intervening regularly. The evidence also

discloses that a panchayat was also held earlier and therefore,

accused was nurturing grudge against the deceased. As such,

when there is a direct evidence, the motive loses importance.

Apart from that accused has given three successive blows on

the head of the deceased and he ought to have known the

consequences as he attacked on the vital part of the body i.e.,

head of the deceased. Further he had used an axe which is

fatal. Hence, his intention can be gathered and as such the

ingredients of Section 302 of IPC are directly applicable.

28. The other witnesses are the police officials and the

Investigating Officer and they have deposed regarding the

investigation done by them. The evidence of PW-1 to PW-4

coupled with the evidence of PW-13, medical officer and the

FSL expert PW-28 which clearly establish that the prosecution

has proved the guilt of the accused beyond all reasonable

doubt. Though the arguments have been advanced regarding

interested witnesses i.e., PW-1, PW-3 and PW-4, the presence

of PW-1, who is the brother of the deceased, PW-3, who is the

father of the accused No.1 and husband of the deceased at

the spot is not challenged.

29. The trial Court has analysed the oral as well as

documentary evidence in detail. This Court has considered

the grounds urged by the defence counsel in detail along with

the citations relied. After appreciating the evidence on

record, the trial Court has arrived at a just decision of

convicting the accused and has imposed minimum sentence.

The judgment of conviction and order of sentence passed by

the trial Court does not suffer from any perversity, infirmity or

illegality so as to call for any interference by this Court.

Hence, the appeal is bound to fail. Accordingly, both points

under consideration are answered in negative and we proceed

to pass the following:

ORDER

Appeal is dismissed confirming the judgment of

conviction and order of sentence passed by the trial Court.

The fees of learned Amicus Curiae is fixed at Rs.5,000/-.

Sd/-

JUDGE

Sd/-

SJUDGE Naa