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2014 DIGILAW 931 (KAR)

Mahabala v. State By Malur Police Station

2014-10-28

N.ANANDA, PRADEEP D.WAINGANKAR

body2014
Judgment: 1. This appeal by the appellant/accused No.2 (hereinafter referred as accused no.2) is against the judgment of conviction and sentence dated 11.12.2009 in S.C.No.103/2008 passed by the Principal Sessions Judge, Shimoga, whereby he has been convicted for offences punishable under Sections 504, 109 r/w Section 302 of IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.15,000/-, in default to undergo simple imprisonment for three months. 2. The case of the prosecution is that on 12.02.2008, Vishwanath/accused No.1 (hereinafter referred as accused no.1), who is juvenile in conflict with law, at the instigation of the appellant/accused No.2-Mahabala, his father, assaulted deceased-Ramesha with a club on his head and committed his murder as he had abused the appellant/accused No.2 by touching the chastity of his wife. A complaint came to be lodged by one S.M. Saadu as per Ex.P2, on the strength of which, a crime came to be registered against both accused (son and father) for offences punishable under Sections 509, 109, 302 r/w Section 34 of IPC and upon investigation, charge-sheet came to be filed against both accused for he aforesaid offences. Since accused No.1-Vishwanath was juvenile in conflict with law, he was produced before the Juvenile Court and the appellant/accused No.2 was tried for aforestated offences. 3. In order to prove the charges levelled against the appellant/accused No.2, as many as 21 witnesses were examined as PW-1 to PW-21, Exs.P-1 to P-22 were marked apart from M.O-1 to M.O-6. The learned Sessions Judge on appreciation of evidence adduced by prosecution, convicted the appellant/accused No.2 for offences punishable under Sections 504, 109, 302 IPC and accused no.2 has been sentenced to undergo imprisonment for life and to pay a fine of Rs.15,000/- and in default, to undergo simple imprisonment for three months. 4. We have heard the learned counsel appearing for appellant/accused No.2 and the learned Government Pleader for respondent-State. 5. In order to establish the charges, the prosecution at the first instance has to prove that the deceased-Ramesha died a homicidal death and that accused No.2 had abetted (instigated) accused no.1 to commit the murder of deceased Ramesha. In order to establish that the death was homicidal death, the prosecution apart from the evidence of PW-1-the complainant, PW-7-Smt. Sumathi, wife of PW-1, PW-8- Manjula, examined PW-20-Dr. In order to establish that the death was homicidal death, the prosecution apart from the evidence of PW-1-the complainant, PW-7-Smt. Sumathi, wife of PW-1, PW-8- Manjula, examined PW-20-Dr. Veeresh, who conducted post mortem examination on the dead body of the deceased Ramesha and issued post mortem examination report as per Ex.P-20 which discloses the following injuries:- i) Left Black eye ii) 4 cms sutured lacerated wound on left forehead from lateral aspect of eyebrow iii) 3 x 2 cms abrasion, linear on the left nose It is also seen from the Post Mortem Report that he had 4 x 3 cms depressed fracture of left frontal bone communication with left frontal sinus. PW-20 - Dr.Veeresh has opined that the cause of death was secondary to the head injury sustained. The homicidal death of deceased has not been controverted by the defence. The defence has not come out with any other theory as to the cause of death. The trial Court has rightly held that death of Ramesha was homicidal. 6. The prosecution has to prove that the appellant/accused No.2 had abetted accused no.2 to commit murder of deceased Ramesha. Out of 21 witnesses examined by the prosecution, PW-1-S.A. Saadu is the first informant. He is none other than the brother of the wife of deceased-Ramesha (PW-2). PW1 lodged first information, wherein he has stated:- that deceased-Ramesha and appellant/accused No.2 are from the same locality, they were doing Hamali work. On 12.08.2008, in the morning at about 9.00 a.m., there was a quarrel between deceased-Ramesha and accused No.2 in connection with the sharing of amount earned by them from Hamali work, deceased-Ramesha abused accused No.2 in a filthy language by touching the chastity of his wife. The accused No.2 also abused deceased-Ramesha in a filthy language by touching the chastity of his wife. The appellant/accused No.2 left that place by threatening that he would teach a lesson to deceased Ramesha through his son (juvenile accused no.1). It is stated in the first information that at about 12.30 noon on the same day, the juvenile accused No.1 went to the house of deceased-Ramesha and questioned him as to why he had abused his mother as a prostitute, by so saying, accused no.1 took out a club which was lying in front of the house of Ramesha, assaulted on the head of deceased Ramesha and caused bleeding injury. Accused no.1 also kicked him. Accused no.1 also kicked him. The deceased became unconscious. His wife Susheelamma (PW2) was working in Vijaya Bank as Sweeper. On learning the incident of assault, PW2 came and shifted deceased Ramesha to Primary Health Centre, from there to Government Hospital, Thirthahalli. PW1 lodged first information against accused no.1 (juvenile offender) and crime no.14/2008 was registered against Vishwanath (accused no.1) for offences punishable under Sections 504 and 324 IPC. Ramesha died while undergoing treatment in Mc. Gann Hospital, Shimoga, thereafter an offence punishable under section 302 of IPC was included. 7. PW-1 is the first informant. He has not supported the case of the prosecution. The evidence of PW1 reveals that PW1 came to the place of incident after learning the incident of assault from his daughters. Be that as it may, from the contents of the first information and his evidence, one thing is very clear that at the time of the assault, accused No.2 had neither participated in the crime nor he was anywhere nearby the place of incident. Therefore, evidence of PW1 is hardly sufficient to prove that accused no.2 had abetted or instigated accused no.1 to assault deceased Ramesha. 8. PW-2-Susheelamma is none other than the wife of deceased-Ramesha. Her evidence would go to show that at 9.30 a.m. on the date of the incident, there had been a quarrel between her husband and accused No.2-Mahabala in connection with the sharing of Rs.10/- in front of bus stop and in that quarrel accused No.2-Mahabala had threatened deceased that he would teach a lesson through his son. PW2 was not an eye witness. She had reached the place of incident after she was informed of the incident by her niece namely Manjula (PW8). 9. PW-3-T.H. Syed was the Vice President of Panchayath. He is a hearsay witness. He has deposed whatever he had known from one Dadu and Susheela, therefore, his evidence is of no relevance inasmuch as it is inadmissible. 10. PW-4-P. Seenappa was a panch witness to the inquest panchanama Ex.P-3 and seizure of club-Ex.P-4 at the instance of accused No.1 which is nothing to do with accused No.2. Even otherwise his evidence is not relevant so as to prove the charges levelled against accused no.2. 11. PW-5-Ganesha was a witness to the spot inspection and he had attested Ex.P-1 drawn near the place of incident. PW5 has turned hostile. 12. Even otherwise his evidence is not relevant so as to prove the charges levelled against accused no.2. 11. PW-5-Ganesha was a witness to the spot inspection and he had attested Ex.P-1 drawn near the place of incident. PW5 has turned hostile. 12. PW-6-Saleem was the owner cum driver of the van in which the injured was taken to the Government Hospital, Thirthahalli at the request of Susheelamma, wife of the deceased. He has not supported the case of prosecution. 13. PW-7-Sumathi is the wife of PW-1. She has deposed about the assault on the deceased by accused No.1. She has not deposed that accused no.2 was present near the place of incident and he had instigated accused no.1. 14. PW-8-Manjula is a relative of deceased-Ramesha. She appears to be an eye witness to the incident in whose presence accused no.1 assaulted the deceased with a club as the deceased had abused mother of accused no.1, touching her chastity. 15. PW-9-Vittala is a co-worker of deceased and accused No.2, who was working as Hamali. He is an hearsay witness, since he was not in the village on the date of incident. PW9 has deposed that he had been to Salejangala village and returned back at 6.00 p.m and came to know about the incident from others. 16. PW-10-Manjunath, is the owner of shop in front of which accused No.2 and the deceased had quarreled during morning of day of incident. PW10 has turned hostile. PW- 11-Haleshwaranaika was the Head Master of Government School, Nayadavalli, Thirthahalli Taluk. He had issued school certificate containing the date of birth of juvenile offender - accused No.1. PW-12 is one K.M. Achuthabhat, who had issued house assessment extract of the house of deceased as per Ex.P-7. PWs-13, 14, 15 and 16 are the doctors from the various hospitals wherein the deceased had been treated. PW-17-D'souza Victor is the Police Constable who had carried articles seized (M.Os-1 to 6) to RFSL. PW- 18-Chikkegowda was the Sub-Inspector of Police, Maluru Police Station, within whose jurisdiction the incident had occurred. He has spoken about the receipt of medical report as per Ex.P-14 from Mc. Gann Hospital regarding the death of the deceased while undergoing treatment and accordingly, he sought permission of the Court to include an offence punishable under Section 302 IPC. PW- 18-Chikkegowda was the Sub-Inspector of Police, Maluru Police Station, within whose jurisdiction the incident had occurred. He has spoken about the receipt of medical report as per Ex.P-14 from Mc. Gann Hospital regarding the death of the deceased while undergoing treatment and accordingly, he sought permission of the Court to include an offence punishable under Section 302 IPC. PW-19-S.K. Prahallad was the CPI, who took up further investigation on 13.02.2008 after the death of the deceased from PW-18 and seized M.O-5-club at the instance of accused No.1 from his house. PW-20-Dr. Veeresh M.R. was the doctor, who conducted post mortem examination on the dead body of Ramesha and issued report as per Ex.P-20. PW-21- Subramanya was the driver of goods auto rickshaw bearing registration No.KA-14-1663, wherein the injured was shifted from primary health centre to Government hospital, Thirthahalli. But, he has turned hostile. 17. On re-appreciation of evidence of aforestated witnesses and other materials placed on record, we find that deceased-Ramesha and accused No.2 were from the same village. They were doing hamali work. On 12.02.2008 at about 9.00 am, there was a quarrel between deceased and accused No.2 regarding sharing of Rs.10/-earned by them from hamali work. They had abused each other in filthy language touching the chastity of their wives and thereafter accused No.2 left that place by threatening that he would teach lesson to the deceased through his son (accused No.1- Vishwanath). At about 12.30 noon, on the same day, accused No.1 went to the house of the deceased and questioned the deceased as to why he had abused his mother as a prostitute and suddenly took a club and assaulted on the head of deceased. When the deceased was assaulted by accused No.1 at about 12 noon accused No.2 was not present at the place of incident nor anywhere near the place of incident. There is absolutely no evidence to show that it is at the instigation of accused No.2, accused No.1 assaulted deceased with a club and caused his death. Accused No.1 was not armed with any weapon when he came to the house of the deceased. Accused no.2 cannot be held guilty of an offence punishable under section 302 r/w 109 IPC, because there is neither direct evidence nor circumstantial evidence. There is no evidence to prove that accused no.2 had threatened deceased with dire consequences to his life. Accused No.1 was not armed with any weapon when he came to the house of the deceased. Accused no.2 cannot be held guilty of an offence punishable under section 302 r/w 109 IPC, because there is neither direct evidence nor circumstantial evidence. There is no evidence to prove that accused no.2 had threatened deceased with dire consequences to his life. The trial Court is not justified in holding that at the instigation of accused No.2, accused No.1 had assaulted deceased Ramesha and caused his death. Therefore, the conviction of accused No.2 for an offence punishable under section 302 r/w Section 109 IPC cannot be sustained. Accordingly, we pass the following: ORDER The appeal is allowed. The judgment of conviction and sentence dated 11.12.2009 passed in S.C.No.103/2008, on the file of the Principal Sessions Judge at Shimoga, is hereby set aside. Accused No.2 is acquitted of offences punishable under sections 504, 302 r/w 109 IPC. The appellant/accused no.2 shall be released forthwith, if he is not required in any other case. In view of disposal of the appeal, Misc.Crl.No.269/2010 for suspension of sentence and bail does not survive for consideration and the same is accordingly dismissed.