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10. The trial Court also observed that the evidence of
PW3 is consistent and reliable, and that no daughter would
depose against her father unless he had committed the offence.
In paragraph No.47, after scrutinising the prosecution evidence
and all the attending circumstances, the trial Court concluded
that it is crystal clear that the accused committed the murder.
11. The learned counsel appearing for the appellant
would vehemently contend that, though PW3 is cited as an eye-
witness, the Court ought to have taken note of the absence of
material evidence with regard to the genesis of the crime. It is
further contended that there is a delay of three days in lodging
the complaint, which is very crucial in a criminal case, and that
the said delay has not been properly considered by the trial
Court. Hence, it is submitted that the impugned judgment
requires interference by this Court.
12. Per contra, the learned counsel appearing for the
State would submit that the trial Court, having considered the
eye-witness account of PW3, who witnessed the accused
inflicting injuries with MO1-wooden log, and also the evidence
of PW7, who rushed to the spot on hearing the screaming
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sound and saw her husband-accused running out of the house
of PW3, has rightly appreciated the evidence on record. It is
further submitted that the trial Court has also taken note of the
medical evidence and the evidence of the official witnesses and,
upon proper appreciation of the same, has rightly convicted the
accused.
13. Having heard the learned Amicus Curiae appearing
for the appellant and the learned HCGP appearing for the State,
and upon considering both the oral and documentary evidence
on record, the following points arise for consideration by this
Court:
1. Whether the trial Court committed an
error in convicting the appellant and
sentencing him for the offence
punishable under Section 302 of the IPC
and the same requires interference by
this Court?
2. What order?
14. We have perused the oral and documentary
evidence, particularly the evidence of PW1 to PW23, who are
the material witnesses. It is the case of the prosecution that
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PW3-Netra and the deceased Shivakumar were husband and
wife, and that PW3 is also the daughter of the accused. It is
important to note that it was a love marriage. They were
residing at Gopagondanahally Village, adjacent to the house of
the accused. It is the further case of the prosecution that the
accused used to quarrel with the deceased Shivakumar every
day by demanding money. On 06.08.2017, at about 10.00
p.m., when the deceased Shivakumar and his wife were
sleeping in their house along with their children, the accused
went to their house and assaulted Shivakumar with a wooden
log, which is marked as MO1, on his abdomen, as a result of
which he sustained a blunt injury.
15. PW3-Netra is an eye-witness, who witnessed the
assault made on her husband by the accused. She immediately
shifted the injured to Mc.Gann Hospital, where he was treated,
and thereafter he was shifted to Wenlock Hospital for further
treatment. It is also important to note that PW7, who is the
wife of the accused, has deposed that upon hearing the
screaming, she rushed to the spot and noticed the accused
moving away from the place of occurrence. On enquiry, she
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came to know from Shivakumar that the accused had assaulted
him. Her evidence appears to be natural and is corroborated
by the testimony of PW3.
16. It is important to note that PW3 is none other than
the daughter of the accused and PW7 is none other than his
wife, and they are also neighbours. No reasons are assigned
by the accused for their deposing against him. Nothing has
been elicited in the cross-examination of these two material
witnesses, namely PW3 and PW7. The trial Judge has also
considered the evidence of PW1, who is the complainant and
brother of the deceased. He has stated in his evidence that,
after receiving information from PW3, he went to Wenlock
Hospital, where he found his brother, who had undergone
surgery to his abdomen. On enquiry, PW3 disclosed the entire
incident to him. Thus, he came to know about the occurrence
only through PW3, and his evidence is hearsay in nature.
However, PW7 is a circumstantial witness who rushed to the
spot and saw the accused running out of the house of PW3.
PW2, an independent witness, is a signatory to the inquest.
Likewise, PW4 is also an inquest witness to Ex.P6.
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17. PW13 and PW22 are circumstantial witnesses. In
their evidence, they have deposed that their houses are
situated near the houses of the accused and PW3. They have
further stated that on hearing the screaming at night, they
went to the house of Netra and noticed that the accused run
away from the spot. They came to know about the incident
through PW3. They are also witnesses to the spot mahazar.
18. Having taken note of the eye-witnesses evidence, it
is to be observed that PW3 is the daughter of the accused and
PW7 is the wife of the accused, the evidence of PW1, PW2, and
PW4, as well as PW13 and PW22, who are circumstantial
witnesses and who saw the accused running away from the
house, has also been considered. All these materials have been
duly taken note of by the trial Court while appreciating the
evidence on record. Nothing has been elicited in the cross-
examination of PW3 and PW7 to show that they were having
any enmity against the accused so as to falsely implicate him.
When such being the case, we do not find any grounds to
interfere with the findings recorded by the Trial Court.
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19. The learned Amicus Curiae appearing for the
appellant would vehemently contend that the complaint was
not lodged immediately after the incident. However, the Court
has to take note of the fact that the accused is none other than
the father of PW3 and the husband of PW7. The first priority of
the family members was to shift the injured to the hospital.
Immediately after the incident, the injured was taken to
Mc.Gann Hospital, Shivamogga, and thereafter shifted to
Wenlock Hospital, Mangaluru. The complaint was lodged
immediately after the death of Shivakumar. The mere delay in
lodging the complaint, in the facts and circumstances of the
present case, cannot be a ground to acquit the accused.
Normally, when an incident takes place among family
members, the immediate concern would be to save the injured
rather than to approach the police station. In the case on
hand, the injured was shifted to hospitals at different places,
namely Shivamogga and Mangaluru, and the Court has to take
note of the distance involved in shifting the injured. Therefore,
the question of lodging the complaint immediately does not
arise.
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20. Having considered the fact that the accused is the
father of PW3 and the husband of PW7, the Court cannot
expect that they would falsely implicate the accused out of
animosity. The medical evidence also clearly establishes that it
is a case of homicidal death. To prove the same, the
prosecution has examined the doctors as PW11 and PW17. The
post-mortem report is marked as Ex.P10, and the FSL reports
are marked as Exs.P7 and P8. In view of the above material on
record, we do not find any grounds to reverse the findings of
the trial Court. Even to reverse such findings, there must be
cogent evidence to arrive at a different conclusion, which is
absent in the present case.
21. The trial Judge has also discussed the evidence of
PW12 in paragraph No.28 and has noted that injury Nos.1 to 4
are surgical sutured wounds measuring 22 cms on the anterior
abdominal wall in the midline, suggestive of surgical
intervention. It is further observed that the cause of death was
due to complications arising from injuries to the intestine and
liver (abdominal injuries), secondary to blunt force trauma.
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22. Having considered the nature of the external
injuries as well as the opinion of the doctor, it is clear that the
case is one of homicidal death. The evidence of PW3 and PW7,
coupled with the testimony of the circumstantial witnesses,
clearly points out that it is the accused who committed the
murder. None of the witnesses has any animosity against the
appellant so as to falsely depose against him. When such being
the case, we do not find any grounds to interfere with the
findings of the trial Court or to arrive at a different conclusion.
Accordingly, the point is answered against the appellant-
accused.
23. In view of the discussions made above, we pass the
following:
ORDER
i) The appeal is dismissed.
ii) The Registry is directed to pay amount of
Rs.10,000/- (Rupees ten thousand only) to
the Amicus Curiae for the able assistance
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rendered. The Registry shall pay the said
Amicus Curiae fee forthwith.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
AM,PHM
List No.: 1 Sl No.: 11
