Karnataka High Court

Jenukurubara Bolla vs The State Of Karnataka on 1 February, 2025

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                                                            CRL.A No. 392 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 1ST DAY OF FEBRUARY, 2025

                                               PRESENT
                    THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                                  AND
                             THE HON'BLE MR JUSTICE K. V. ARAVIND
                                CRIMINAL APPEAL NO. 392 OF 2018

                   Between:

                   1.    Jenukurubara Bolla S/o Mari,
                         Aged about 50 years,
                         R/at Penjahalli, Antharasanthe,
                         H.D. Kote Taluk, Mysore District

                   2.    Jenukurubara Nagappa S/o Linga,
                         Aged about 39 years,
                         R/at Bommadu Hadi, Kothuru Village,
                         Virajpet Taluk, Kodagu District

                   3.    Jenukurubara Dadhu S/o Linga,
Digitally signed         Aged about 23 years,
by VEERENDRA
KUMAR K M                R/at Bommadu Hadi, Kothuru Village,
Location: HIGH           Virajpet Taluk, Kodagu District
COURT OF                                                                ...Appellants
KARNATAKA
                   (By Sri Gopal Singh, Advocate-Amicus curiae for A1
                      (vide order dated 12.01.2024);
                       Sri H.S.Suresh, Advocate for A2;
                       Sri Ajay Prabhu, Advocate for A3)

                   And:

                   The State of Karnataka
                   Through Circle Police Inspector
                   Kutta Circle, Virajpet Taluk
                   Kodagu District
                   Represented by the
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                                          NC: 2025:KHC:4742-DB
                                         CRL.A No. 392 of 2018




State Public Prosecutor
High Court Buildings
Bengaluru-560001.
                                                   ...Respondent
(By Sri Vijay Kumar Majage, SPP-II)

       This Criminal Appeal is filed u/s. 374(2) Cr.P.C., praying
to set aside the judgment and order of conviction dated
17.01.2018 and sentence dated 18.01.2018 passed by the II
Additional District and Sessions Judge, Kodagu - Madikeri,
sitting at Virajpet in S.C.No.95/2016, convicting the
appellants/accused Nos.1 to 3 for the offence p/u/s 302 r/w 34
of IPC.

     This Criminal Appeal, coming on for hearing, this day,
judgment was delivered therein as under:

CORAM:      HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
            and
            HON'BLE MR JUSTICE K. V. ARAVIND


                      ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)

The appellants were the accused in

S.C.No.95/2016 on the file of II Additional District

and Sessions Judge, Kodagu Madikeri (sitting at

Virajpet). They faced trial for the offence under

Section 302 read with Section 34 of IPC in relation

to an incident dated 27.12.2015 which is as below.

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2. PW1-Jenukurubara Madevi and Kariyanna-

the deceased were spouses. On 27.12.2015, both

of them returned home at 06.30pm after finishing

their work. They did not see their second

daughter-Pooja in the house and when they

enquired their son PW2-Madesh, they came to

know that Muthanna-the son of accused No.2 took

her with him. Kariyanna left home saying that he

would bring back Pooja and while going he took

PW2 with him to the house of accused No.2. By

07.30pm, PW1 heard screaming of her husband

from the house of accused No.2. Immediately she

went there and saw all the three accused

quarrelling with her husband. During quarrel

accused No.1 took an iron pipe and hit hard on the

middle of Kariyanna's head with that pipe.

Accused No.2 assaulted on the left wrist of

Kariyanna with a firewood piece and then accused

No.3 fisted on Kariyanna's chest. Then all of them

left that place. Kariyanna was shifted to

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Gonikoppa Government Hospital. Kariyanna died

around 09.30am on 28.12.2015. PW1 made a

report of this incident to the police at 10.30pm on

28.12.2015. On registration of FIR, investigation

was held and charge sheet was filed against the

three accused for the offence under Section 302

read with Section 34 of IPC.

3. Assessing the evidence brought before

the court by the prosecution, the trial court arrived

at a conclusion that the prosecution was able to

prove its case beyond reasonable doubt. The trial

court has held that evidence given by PW1 and

PW2 is believable, and their testimony is

corroborated by medical evidence as well as

recovery of iron pipe and club at the instance of

the accused. In regard to motive, it is held that in

view of evidence of eye witness being believable,

motive pales into insignificance.

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4. We have heard the arguments of Sri

Gopal Singh, learned advocate for accused No.1,

Sri H.S.Suresh, learned advocate for accused No.2,

Sri Ajay Prabhu, learned advocate for accused No.3

and Sri Vijayakumar Majage, learned SPP-II for the

respondent/State.

5. The prominent witnesses are PW1 and

PW2. If their evidence is reassessed, the

obtaining picture is this: PW1 is the wife of

Kariyanna. If her report to the police Ex.P.1 is

seen, it appears that she is an eye witness. She

has written that as soon she heard the screaming

voice of Kariyanna, she went near the house of

accused No.2, and saw her husband being beaten

by all the three accused. In her examination in

chief also, she has deposed so. But in her cross-

examination, her one answer is that, by the time

she went there, accused had left that place after

assaulting her husband. It was with reference to

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this answer all three advocates for the appellants

argued that she was not an eye witness and her

testimony could not have been relied upon by the

trial court. Accepting this argument if evidence of

PW1 is ignored, there remains the evidence of

PW2. His evidence in chief examination shows that

he went with Kariyanna, and was present when the

incident occurred. He has given a clear account of

what happened in his presence. He has stated that

when his father asked accused No.2 about

whereabouts of Pooja, accused No.1 gave a blow

on his father's head with an iron pipe, accused

No.2 assaulted with a club on the right hand and

accused No.3 fisted on the chest. He has stated

that his mother, i..e, PW1, Kumara-PW3, Prakash-

PW4 and he took his father to hospital. His cross

examination has gone in vain. In fact some

suggestions are given admitting the prosecution

case. The argument of Sri Gopal Singh was that

since PW2 was a boy of nine years, it was

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impossible that Kariyanna would have taken PW2

with him out of the house during night hours.

They were all living in forest area and therefore

PW2 could not have gone with his father. His

presence at the spot was doubtful. Since he is a

child witness he could have been tutored. Sri

H.S.Suresh argued that PW2 has stated about

arrival of one Ravi to the spot but he is not

examined.

6. If the entire evidence of PW2 is put to

scrutiny, it cannot be said that he has deposed

falsehood, nor does he appear to be a tutored

witness. For the reason that he is a child witness,

an inference that he was tutored cannot be drawn,

instead natural flow in his evidence can be seen.

Going out of house in a forest place during night is

not unusual for the tribals, and moreover the place

where the incident occurred was not very far from

his house. There are no reasons at all to discard

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the evidence attaching weight to points urged by

learned counsel, and the trial court has not erred

in relying upon the testimony of PW2.

7. PW8 is the doctor who conducted post

mortem examination. The injuries noticed by PW8

on the dead body at the time of post mortem

examination buttress the testimonies of PW1 and

PW2 in regard to overt act of each accused. Non-

examination of one Ravi, whose name PW2 has

taken, does not have negative impact on the

prosecution case as the evidence of PW2 is wholly

reliable.

8. The evidence relating to recovery of

incriminating articles including an iron pipe and a

club is believable. Though the learned counsel

tried to point out discrepancy in the evidence in

the seizure affected by the Investigating Officer,

they are usual defences that hardly affect the

prosecution case.

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9. As there is ample proof against all the

accused pointing out their involvement in causing

death of Kariyanna, the next question is whether

the act of the accused amounts to murder. Though

the defence has failed to bring forth mitigating

circumstances, it can be demonstrated from the

prosecution case itself that the incident does not

fall with the scope of Section 300 of IPC

punishable under Section 302 of IPC. If the facts

are put to analysis, it can be noticed that if

Kariyanna had not gone to meet accused No.2 to

question the whereabouts of his daughter, the

incident would not have occurred. That means

only for the reason that Kariyanna went to that

place and questioned accused No.2 there erupted a

quarrel between him and accused No.2 which

thereafter resulted in injuries being inflicted to

Kariyanna leading to his death on the next day.

The voluntary statements of accused are available

and if they are read excluding the incriminating

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portion, it becomes clear that when Kariyanna

asked accused No.2 about his daughter, the latter

replied that he did not know about it and asked

Kariyanna to return home; he also told that all of

them could search for her the next day morning.

Then there arose a quarrel between Kariyanna and

the accused. The quarrel aggravated and in that

course the accused resorted to assaulting

Kariyanna. This portion of the statement is

favourable to the accused. There is no bar for

making use of this portion of the voluntary

statement. Section 25 of the Indian Evidence Act

states that any confession made by an accused

should not be proved against him. But there is no

bar for the accused making use of his own

statement to explain certain circumstances

favouring him. There was a sudden fight and in

that heat of passion, the accused might have

assaulted Kariyanna. There was no premeditation

in them. Their intention was to cause injury to see

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that Kariyanna would leave that place. There was

no direct intention to kill him. The injuries caused

by them were likely to cause death and looked in

this view the entire incident can be brought within

Section 299 of IPC punishable under Section 304

Part I of IPC. Since all the three accused attacked

Kariyanna at a time, it is possible to hold that all

of them developed common intention to cause

injuries to Kariyanna. Sri Ajay Prabhu argued that

Kariyanna was not given proper treatment and he

would have survived if he had been taken to

hospital or proper treatment was given. This

argument cannot be accepted because explanation

(2) to Section 299 IPC states as below:

Section 299........

Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

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10. For the above reason we hold that the

judgment of the trial court requires to be

confirmed with some modification to hold that the

accused can be punished under Section 304 Part I

of IPC instead of Section 302 of IPC. Hence we

pass the following:

ORDER

a. Appeal is partly allowed.

b. The judgment of conviction is modified.

Conviction of the accused/appellants

No.1 to 3 for the offence under Section

302 read with Section 34 of IPC is set

aside, instead all the three accused are

convicted for the offence under Section

304 Part I read with 34 of IPC and each

of them is sentenced to undergo

rigorous imprisonment for a period of

five years and pay fine of Rs.5,000/-.

In default of paying fine, each of the

accused shall undergo simple

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     imprisonment            for       a     period   of    two

     months.


c.   Rest    of      the    order      on     sentence      with

regard to payment of compensation, is

confirmed.

d. All the accused are entitled for set off

for the period they have spent in the

jail.

e. Accused No.1 and 2 shall be set at

liberty if they have already spent five

years in the jail and paid the fine

amount, provided their presence is not

necessary in connection with any other

case/s.

f. The trial court shall secure accused