The State Of Karnataka vs Shivakumara S/O Late Sarangapani
2023 Latest Caselaw 3542 Kant

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                                                       NC: 2023:KHC:21509-DB
                                                          CRL.A No. 1526 of 2016




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 21ST DAY OF JUNE, 2023

                                             PRESENT
                    THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                                 AND
                           THE HON'BLE MR JUSTICE G BASAVARAJA
                             CRIMINAL APPEAL NO. 1526 OF 2016
                   BETWEEN:
                   THE STATE OF KARNATAKA
                   BY POLICE INSPECTOR
                   SIRA POLICE STATION
                   TUMAKURU DISTRICT
                   REPRESENTED BY
                   STATE PUBLIC PROSECUTOR
                   HIGH COURT BUILDING, BENGALURU-572 137
                                                                     ...APPELLANT
                   (BY SRI K.S.ABHIJITH, HCGP)

                   AND:
                   SHIVAKUMARA, S/O.LATE SARANGAPANI
                   AGED ABOUT 32 YEARS
                   R/O SANTHEPETE, SIRA TOWN
                   NATIVE PLACE: KORATAGERE TOWN
Digitally signed   TUMAKURU-572 129
by HARSHITHA B                                                     ...RESPONDENT
Location: High
Court of           (BY SRI B.CHANDRAHASA RAI, ADVOCATE)
Karnataka
                         THIS CRL.A. FILED U/S.378(1) & (3) CR.P.C BY THE STATE
                   P.P. FOR THE STATE PRAYING THAT THIS HON'BLE COURT MAY BE
                   PLEASED TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE
                   JUDGEMENT AND ORDER OF ACQUITTAL DATED 04.01.2016 PASSED
                   BY THE PRL. DIST. AND S.J., TUMAKURU IN S.C.NO.91/2014
                   THEREBY ACQUITTING THE RESPONDENT/ACCUSED FOR THE
                   OFFENCES P/U/S 324,326,307 AND 302 OF IPC.

                         THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
                   31.05.2023, COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT',
                   THIS DAY, G BASAVARAJA J., DELIVERED THE FOLLOWING:
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                                    NC: 2023:KHC:21509-DB
                                           CRL.A No. 1526 of 2016




                            JUDGMENT

This appeal is filed by the State challenging the

judgment dated 04.01.2016 in Sessions Case No.91/2014 on

the file of Prl. District and Sessions Judge, Tumakuru. The

respondent was charge-sheeted for the offences punishable

under Sections 324, 326, 307 and 302 of IPC.

2. The brief facts of the case are that the complainant,

Parvathamma, is the mother of the accused. The

complainant, the accused, and one Lakshmikantha, the

paramour of the complainant, were residing together in a

rented premises situated at Santhepete Extension, Sira

Town. The complainant used to spend all her earnings for a

lavish lifestyle with Lakshmikantha, and the accused was

neglected by the complainant. There was previous ill will

between the accused and Lakshmikantha, who quarrelled 3-4

times before this incident. On March 29, 2014, at 9.45 p.m.,

when the complainant, the accused, and Lakshmikantha were

in the house, the accused, with an intention to kill the

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complainant and Lakshmikantha, picked up quarrel in regard

to changing the TV channel while watching the television and

assaulted the complainant and Lakshmikantha with a wooden

club, the complainant and the Lakshmikantha got injured;

however, Laxmikantha succumbed to death in General

Hospital Sira,as a result, the accused allegedly committed

offences. Accordingly, the investigating officer submitted

charge sheet against the accused for the alleged commission

of the offence.

3. To prove the case of the prosecution, the

prosecution in all examined 7 witnesses as PWs.1 to 7, got

25 documents marked as Exs.P.1 to 25, and 6 material

objects marked as MO.1 to 6.

4. On closure of prosecution side evidence, the

statement under Section.313 of Cr.P.C for the incriminating

circumstances was recorded. The accused has totally denied

the evidence of prosecution witnesses; however he has not

chosen to lead any defence evidence on his behalf. The trial

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court after hearing the submissions made by the counsel

framed the points for consideration and passed impugned

judgment of acquittal. Being aggrieved by this judgment of

acquittal, the State has preferred this appeal.

5. Learned HCGP Sri. K.S.Abhijith submitted his

argument that the impugned judgment and order of acquittal

passed by the trial court is contrary to law, facts and

evidence on record. The trial court ought to have seen that

the prosecution was able to establish relevant circumstances

that deceased Lakshmikantha had illicit relationship with the

complainant-PW5 Parvathamma for the last 15 years. When

both the complainant and the deceased Lakshmikantha were

in the house, accused suddenly assaulted with wooden club ,

the complainant got injured, and Laxmikantha succumbed to

death ,when he was being shifted to the hospital for

treatment.

6. The trial court failed to appreciate the evidence of

PW5, who is the complainant and injured eye witness of the

prosecution case. The trial court has also failed to appreciate

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the evidence of PW1-Doctor who conducted post-mortem of

the deceased Lakshmikantha. On all these grounds he sought

for allowing this appeal.

7. Per contra, the learned counsel appearing on behalf

of the respondent/accused has submitted his argument that

the trial court has appreciated the evidence on record in a

proper and perspective manner and has passed the

impugned judgment which is in accordance with law and

facts. Further he forcefully submitted that there is no

material to interfere with the impugned judgment of

acquittal. On all these grounds, he sought for dismissal of

this appeal.

8. On hearing the arguments on both sides and on

perusal of the records, following points arise for

consideration:

a. Whether the prosecution has made out grounds to interfere with the impugned judgment of acquittal?

b. What order?

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9. Our answer to the above points are as under:

Point No.1: In the negative.

Point No.2: As per final order

10. RE. POINT NO.1:The trial court has answered

the point.No1 affirmatively ie., the trial court held that

beyond all reasonable doubt, the prosecution has proved

that death of Lakhsmikantha was a homicidal one. The

accused has not challenged the same by preferring any

appeal. Hence, there is no dispute between the parties as

to the death of Lakshmikantha as homicidal.

11. Now the question is whether the accused has

committed these alleged offences. In this regard, the

material witness PW5-Parvathamma,the complainant and

also injured, has deposed in her evidence that the

accused, who is deaf and dumb, is her second son. Her

husband by name Sarangapani was a driver in the PWD

department and died about 30 years ago. After the death

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of the complainant, the complainant joined Minor

Irrigation Department on compassionate grounds 25 years

ago. In her evidence she deposed that in the wedlock with

Sarangapani, three children were born: two sons and a

daughter. Among the three, the first son resides

separately at Korategere as auto driver , the married

daughter resides at Sira town, and the second son accused

who lost his speech in an accident, is a bachelor. The

complainant had been acquainted with Lakshmikantha for

fifteen years whilst working in Tumkur. Lakshmikantha's

parents lived next door to her. The complainant was

relocated to Sira three years ago and had rented a

property of one Vasanthaiah (PW3). She and

Lakshmikantha shared a home in Sira. After six months,

the accused moved to the complainant's residence, and

Laxmikanth, who had no profession, used to stay at home.

The complainant would go for work at 10 a.m. and return

at 1.30 p.m., after which she would leave at 3 p.m. and

return at 5.30 p.m. Lakshmikantha and the accused didn't

have any issues. she was told there were a few galata

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between them,. On top of that, she deposed that on

March 29, 2014, at about 8.30 to 9.00 p.m., when all

three were watching television, the complainant asked the

accused to change the channel, and at that point of time,

the accused assaulted her with a club on her head, she fell

down and went into an unconscious state. She did not

know the subsequent happenings regarding

Lakshmikantha. She does not know whether the accused

has assaulted Lakshmikantha or anyone else. She had

broken her hand as a result of the assault by the accused.

She questioned a doctor about Lakshmikantha, and the

doctor told her that he was also assaulted. She does not

know where Lakshmikantha died. Further, she deposed

that the police came to the hospital and took her signature

on the document Ex.P.7, and also that after her discharge

from the hospital, the police took her to the police station

and have visited the spot . She does not know whether

any material objects were seized at that time. There were

bedsheets, nighties, blood stains, rug, and pillows. Blood

stains can also be seen on the wall of the hall. She has not

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seen the rug, but she told that it was also blood-stained.

She does not know what happened to those materials. She

has identified MOs. 2, 4, and 5. This witness has not fully

supported the case of the prosecution. Therefore, with the

permission of the court, the prosecution treated her as a

hostile witness and cross-examined by the prosecution. In

her cross-examination, she categorically stated that she

did not know the contents of the complaint. She has also

admitted that the accused was not in the house on the day

of the incident, and further, she has deposed that the

police threatened her to depose as per the contents of the

complaint and Mahazar.

12. PW1 Dr. C.K.Umesh is the medical officer, who

has deposed regarding the conducting of post mortem

examination of the dead body of Lakshmikantha and

giving report which is marked as Ex.P.1 and opinion as per

Ex.P2.

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13. PW2 Dr.Jawahar Babu medical officer has

deposed in his evidence as to the examination of the

patient by name Parvathamma who is examined as PW5

and issuance of wound certificate-Ex.P3.PW3

Vasanthakumar has deposed as to the contents of spot

mahazar-Ex.P4 and seizure mahazar-Ex.P5 and Ex.P6-

seizure of Mos2 to 6.

14. PW4 Vijayanarasimha who is the brother of

Lakshmikantha has deposed in his evidence that he had

seen the dead body of Lakshmikantha in Mortuary of

Government Hospital, Sira. PW6 C.Kotresh and PW7

P.Shivakumar-Investigation officers have deposed as to

their respective investigation.

15. On careful scrutiny of the evidence of the

prosecution witnesses, it can be made out that PW5-

Parvathamma is the material witness and Ranganatha-

CW2 is an eyewitness to this alleged incident. The said

Ranganatha has not been examined by the prosecution.

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The only eyewitness and injured person is Parvathamma

who is examined as PW5. She has not deposed anything

against the accused. She has also deposed in her evidence

that she does not know anything about the fact that the

accused has assaulted Lakshmikantha or any other

person. PW5 completely deviates from the contents of

Ex.P7 regarding the assault on her and Lakshmikantha by

the accused.

16. The public prosecutor treated this witness as

partially hostile and cross-examined PW5. During the

course of cross-examination by the learned public

prosecutor, this witness admits that police had come to

her house and had taken this witness and Lakshmikantha

in a 108 ambulance to the government hospital, Sira. She

further states that she had come to the court with her

maternal uncle, and she admits that there is no one to

look after her.

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17. During the course of cross-examination by

standing counsel for the accused, this witness, PW5, states

that she does not know how Lakshmikantha died.

According to her, she has not stated before the police that

she had illicit relationship with Lakshmikantha and that he

was living with her. She does not know the parents, wife,

or children of Lakshmikantha. Further, during the cross

examination she admits that the family members of

Lakshmikantha quarreled and assaulted both PW5 and

Lakshmikantha in view of their earlier illicit relationship.

During her cross-examination, she stated that when the

police came and recorded her statement as per Ex.P7,

nobody was present while recording the statement. On

perusal of Ex.P.9, it is clear that one medical officer has

signed. The name of the medical officer is not disclosed.

Even the investigating officer has not cited him as a

witness in the charge sheet. The PW6 who recorded the

statement of PW5 has deposed in the evidence that he

recorded the statement of Parvathamma in the presence

of the medical officer between 9.00 a.m. and 9.40 a.m. On

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inquiry by the medical officer, Parvathamma was in a fit

condition to give her statement. But he has not disclosed

the name of the medical officer who was present at the

time of recording the statement as per Ex.P7. The medical

officer has not endorsed on Ex.P7 that Parvathamma was

in a fit condition to give her statement. This material lapse

on the part of the investigating officer will create a

reasonable doubt as to the contents of Ex.P.9.

18. Sri. Ranganatha eye witness is shown as CW2

in the charge sheet. The said material witness has not

been examined by the prosecution. A perusal of order

sheet of the trial court reveals that prosecution has not

taken any cohersive steps to secure CW2 material witness.

19. PW5 has categorically stated that the accused

was not in the house on the date of the incident, and she

is deposed as the police have threatened her to do so as

per the contents of the complaint and mahazar. Therefore,

there is no consistency between the evidence in PW5 and

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the contents of the complaint. Therefore, the evidence of

PW5 does not inspire confidence, and the evidence of PW5

will create doubt as to the alleged act of the accused.

Hence, the same cannot be believed.

     20.   As   far    as   the        assault    caused     to    PW5

Parvathamma     is    concerned,       after     the   incident,   PW5

Parvathamma was admitted to the hospital with a history

of assault, but she has not stated the name of the accused

before the doctor, though her general body condition was

good. If the accused had assaulted PW5 as alleged in the

complaint, PW.5 would have disclosed the name of the

accused, but she has not done so. PW2 has not explained

anything in this regard.

21. The alleged incident took place on March 29,

2015, at 9.45 p.m. at the house of the complainant in

Santepete, Sira Town. The Ex.P7 complaint filed by PW5

came to be filed on March 30, 2014, between 9.00 a.m.

and 9.45 a.m. The FIR was received by the magistrate on

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March 30, 2014, at 1.15 p.m. The scene of the incident is

at a distance of 1.5 kilometres from the police station.

After the alleged incident, PW5 was injured and admitted

to the hospital on March 29, 2014, at 10.35 p.m. The

hospital is situated in Sira Town, but the medical officer

has not registered the case as a medico-legal case. Dr.

Jawahar Babu, who has examined the injured

Parvathamma before this court as PW2, has not whispered

anything about the fact that he has not registered the case

as a medical-legal case and that he has not given

intimation to the concerned police, though the injured was

admitted to the hospital with a history of assault. PW6 C.

Kotresh Police Inspector deposed in his evidence that on

March 30, 2014, when he was in the police station, at

about 9.00 am, he received a call from Sira Government

Hospital stating that one Parwathamma injured is admitted

with a history of assault. He went to the hospital, but he

did not record the statement of the injured Parvathamma

on the same day; however, on the next day, from 9.00

a.m. to 9.40 a.m., he recorded the statement. PW6, the

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police inspector, has not explained anything as to the

delay regarding the statement of complainant PW5 or the

delay in submitting the FIR to the court. This conduct of IO

creates a reasonable doubt as to the contents of Ex.P7.

22. The trial court appreciated the evidence on

record in a proper and perspective manner. Even on re-

appreciation of the evidence on record, we do not find any

material to interfere with the impugned judgment of

acquittal. Hence, we answer point No. 1 in the negative.

23. The trial court has not passed any orders as to

the compensation to be awarded to the legal heirs of

deceased Lakshmikantha as contemplated under Section

357 A of Cr.P.C. Hence, it is necessary to issue direction to

the member Secretary District Legal Services Authority to

award compensation to the legal heirs of the deceased

Lakshmikantha after due enquiry in accordance with law.

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24. RE. POINT NO.2: For the aforesaid reasons

and discussions, we proceed to pass the following:

ORDER

Appeal is dismissed.

Registry is directed to send copy of this judgment to

the member secretary of concerned District Legal Service

Authority to award compensation to the legal heirs of the

deceased Lakshmikantha as contemplated under Section

357 A of Cr.P.C. after due enquiry in accordance with law.

Sd/-

JUDGE

Sd/-

JUDGE BH