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2015 DIGILAW 1 (KAR)

State of Karnataka v. Veeresh @ Bende

2015-01-02

MOHAN M.SHANTANAGOUDAR, P.S.DINESH KUMAR

body2015
Judgment Criminal Appeal No.691/2010 is filed by the State questioning the Judgment & Order of acquittal dated 30.1.2010 passed by the Fast Track Court – I, Bengaluru City in S.C. No.330/2004. Criminal Appeal No.371/2011 is filed by the original complainant questioning the very Judgment & Order of acquittal. 13 accused were charged and tried for the offences under Sections 147, 148 and 323, 324, 302 read with 149 of IPC. 2. Case of the prosecution in brief is that the deceased Manjunath had got verbal altercation with Accused No.5 – Jagadeesha in a marriage choultry at about 9 p.m. on 11.6.2003; Accused No.3 had puffed cigarette against the face of the deceased Manjunath and in that regard altercation took place and ultimately due to intervention of friends, there was no quarrel between the two; With the said background, all the accused who are stated to be friends of Accused No.5 grouped together, armed themselves into an unlawful assembly and came near a godown wherein the deceased was talking with PW.2 – Sabut Peter; Accused Nos.1 and 2 assaulted the deceased Manjunath with beer bottles and thereafter with clubs; all the other accused also fisted and kicked the deceased Manjunath, consequent upon which he fell to the ground. The incident is witnessed by PWs.1 to 5, 8 and 9; Two of the eyewitnesses viz., PWs.1 and 2 shifted the deceased Manjunath in an autorickshaw for treatment to the hospital; Firstly, the deceased was taken to Bangalore Baptist hospital wherein he was given first aid treatment; Thereafter he was taken to M.S. Ramaiah Hospital and subsequently to Mallige Nursing Home, Bangalore; The deceased breathed his last on 14.6.2013 at 7 a.m. while under treatment at Mallige hospital. It is relevant to note here itself that PW.2 being the friend of the deceased Manjuanth and talking with the deceased at the relevant time also allegedly sustained injuries on his head. PW.2 also allegedly took treatment in the M.S. Ramaiah hospital. However neither the wound certificate is forthcoming nor the doctor who treated the victim – PW.2 is examined. It is relevant to note here itself that PW.2 being the friend of the deceased Manjuanth and talking with the deceased at the relevant time also allegedly sustained injuries on his head. PW.2 also allegedly took treatment in the M.S. Ramaiah hospital. However neither the wound certificate is forthcoming nor the doctor who treated the victim – PW.2 is examined. PW.1 being the relative of the deceased and whose house is situated in the nearby area, came to the spot after hearing the cries and saw the incident; He alongwith PW.2 shifted the deceased to the hospital in an autorickshaw; The Police came to M.S. Ramaiah hospital, Bangalore and recorded the statement of PW.1 at 21.45 hours as per Ex.P1; Based on which Crime No.205/2013 is registered in Hebbal Police Station by the Investigating Officer PW.21. The complaint was initially lodged against five named persons (Accused Nos.1 to 5) and others. Charge sheet came to be filed against 13 persons. 3. During the course of trial, Accused No.8 expired and therefore case against him abated and trial went on against other 12 accused. 4. In order to prove its case, the prosecution in all examined 22 witnesses and got marked 26 Exhibits and 7 Material Objects. On behalf of the defence, one exhibit is got marked from the statement of PW.4. The trial Court on evaluation of the material on record acquitted all the accused. 5. Sri Venkatesh, learned Addl. SPP taking us through the material on record and the judgment of the Court below submitted that the entire approach of the trial Court while deciding the matter is erroneous; the appreciation of evidence by the trial Court was improper and incorrect; the trial Court has given more weightage to the minor variations in the evidence of the prosecution witnesses; based on certain minor variations which are against the prosecution, the entire evidence of the prosecution witnesses, more particularly the versions of the eye witnesses are disbelieved by the Court below. He further submits that the trial Court ought to have evaluated the material on record in its entirety and not in piecemeal. Finally, he fairly submits that the prosecution may have case against Accused Nos.1 and 2, if not against Accused Nos.3 to 5. He further submits that the trial Court ought to have evaluated the material on record in its entirety and not in piecemeal. Finally, he fairly submits that the prosecution may have case against Accused Nos.1 and 2, if not against Accused Nos.3 to 5. Sri Raghavendra, advocate appearing for Sri C.V. Nagesh, learned advocate for the original complainant/ appellant in Criminal Appeal No.371/2011 also argued in support of the case of the prosecution. He supported the argument of Sri Venkatesh, learned Addl. SPP by submitting that the prosecution has made out case against Accused Nos.1 and 2 for the offence under Section 302 of IPC inasmuch as both the accused have assaulted the deceased on the head with the help of beer bottles; the very fact that the accused have chosen the vital portion of body of the deceased for committing the crime itself would clearly reveal the intention on the part of Accused Nos.1 and 2 to commit the murder of the deceased. Per contra, Sri Dinesh Kumar, advocate appearing for Sri R.B. Deshpande, learned advocate for the accused argued in support of the judgment of the Court below. He submits that the trial Court is justified in acquitting all the accused including Accused Nos.1 and 2 inasmuch as the evidence of the eye witnesses is shaky and unbelievable; PWs.1,2,3,4,5,8 and 9 who are projected as eyewitnesses are not real eye witnesses, but have come to the spot subsequent to the incident in question; the so called eyewitness PW.2 who is stated to be injured cannot be treated as injured eye witness inasmuch as he has not sustained any injury; his presence is not spoken to by PWs.3 to 5, 8 and 9 at all. On these among other grounds, he argued for confirmation of the Judgment of the Court below. 6. PW.1 is the eye witness to the incident in question. He has lodged the first information as per Ex.P1 before the Inspector of Police of Hebbal Police Station, based on which Crime No.205/2003 is registered in the said Police Station. PW.1 is the relative of the deceased. He took the victim to the hospital in an autorickshaw. PWs.2, 3, 4 and 5 are also the eye witnesses. Out of them, PW.2 claims to be the injured eye witness. PW.1 is the relative of the deceased. He took the victim to the hospital in an autorickshaw. PWs.2, 3, 4 and 5 are also the eye witnesses. Out of them, PW.2 claims to be the injured eye witness. However no supporting material or document is produced to show that PW.2 has sustained injury to any portion of his body. PW.6 is the witness for the incident which occurred one day prior to the incident in question. Virtually, he has deposed about motive for the incident in question. PW.7 is the witness for the scene of offence panchanamaEx.P2 under which beer bottle pieces and clubs were seized. PWs.8 and 9 are also eye witnesses to the incident in question. PW.10 is a witness for the inquest panchanama Ex.P5. The said panchanama was drawn at Victoria hospital, Bangalore. PW.11 is a witness for seizure of club (MO.6) from Accused No.5; the panchanama is at Ex.P6. PW.12 is a Police Constable who took the articles to Forensic Science Laboratory for examination. PW.13 is the Engineer who drew the sketch of scene of offence as per Ex.P9. PW.14 is the doctor who conducted the postmortem examination on the dead body of deceased Manjunath and gave his report as per Ex.P12. PW.15 is the doctor working in the Bangalore Baptist Hospital. He examined the deceased Manjunath and gave first aid and thereafter referred the patient to M.S. Ramaiah hospital since neuro surgery was not available in the Baptist Hospital during the relevant time. PW.16 is the Head Constable who arrested Accused Nos.1 and 5. PW.17 is the Police Constable who arrested Accused No.7. PW.18 is another Police Constable who carried the first information report to the Court. It is relevant to note that the first information report reached the Court at 11.30 a.m. on 13.6.2003 i.e., with a delay of about 12 hours from the date of registration of the complaint. PW.19 is the Police Constable who carried the dead body for postmortem examination. PW.20 is the officer of Mallige Nursing Home. He issued the death memo as per Ex.P19 consequent upon the death of the deceased Manjunath and he in turn sent the same to Hebbal Police Station. PW.21 is the Investigating Officer who completed the investigation and laid the charge sheet. PW.22 is the officer of the Forensic Science Laboratory. 7. PW.20 is the officer of Mallige Nursing Home. He issued the death memo as per Ex.P19 consequent upon the death of the deceased Manjunath and he in turn sent the same to Hebbal Police Station. PW.21 is the Investigating Officer who completed the investigation and laid the charge sheet. PW.22 is the officer of the Forensic Science Laboratory. 7. It is not disputed that the death of Manjunath is homicidal in nature. The postmortem report Ex.P12 clearly depicts that the death is due to comaas a result of head injury sustained. The doctor has also mentioned in the postmortem report that all the injuries are antemortem in nature. The victim has sustained as many as 10 injuries and the first injury is on the vital portion of the body i.e., head. Even on reconsidering the material on record, we find that the death is homicidal in nature inasmuch as the postmortem report is supported by the version of the doctor PW.14 who conducted the postmortem examination. 8. The case of the prosecution fully rests on the ocular testimony of PWs.1 to 5, 8 and 9. We have meticulously perused the versions of the eye witnesses. 9. PW.1 is the relative of the deceased Manjunath. He has deposed to the effect that at about 8 p.m. on 12.6.2003, when he was standing in front of his house talking with his father, he heard hue and cry from about 200 feet from the house; immediately he rushed to the spot and saw the incident of assault on Manjunath by the accused; on seeing him, all the accused ran away from the scene; He, with the help of PW.2 shifted the victim Manjunath in the autorickshaw to the hospital; He has lodged the first information as per Ex.P1 in the Hebbal Police Station immediately after the incident i.e., at about 9.45 p.m. 10. In the matter on hand, the first information is lodged without any delay. The first priority for the complainant/ eyewitness was to save the life of the victim. Therefore he immediately took the victim to the Bangalore Baptist Hospital at the first instance and thereafter to M.S. Ramaiah Hospital. In the meanwhile, the authorities of the Baptist Hospital have informed the Police about the medico legal case. Therefore the Police rushed to the hospital (M.S. Ramaiah Hospital) and recorded the statement of PW.1 as per Ex.P1. Therefore he immediately took the victim to the Bangalore Baptist Hospital at the first instance and thereafter to M.S. Ramaiah Hospital. In the meanwhile, the authorities of the Baptist Hospital have informed the Police about the medico legal case. Therefore the Police rushed to the hospital (M.S. Ramaiah Hospital) and recorded the statement of PW.1 as per Ex.P1. Ex.P1 contains the names of five accused i.e., Accused Nos.1 to 5. However it is stated therein that other persons also assaulted the deceased. We find that the complaint is lodged immediately after the incident without any premeditation. There was no opportunity for PW.1 to concoct the false story. Crime is registered based on Ex.P1 at 9.45 p.m. on 12.6.2003. It is no doubt true that the first information report has reached the Magistrate with the delay of about 12 hours from the time of registration of the complaint. However the contents of the first information are not changed during the interregnum. Even the first information report as sent to the Court reveals the names of Accused Nos.1 to 5 specifically. The first information report which is lodged instantaneously may have to be given due credence looking to the other material on record. Though it names Accused Nos.1 to 5 as the persons who assaulted the deceased, it specifies that Accused No.2 took out beer bottle and assaulted on the victim Manjunath and others have assaulted with a club on him. The complaint also depicts that PW.2 has sustained certain injuries. Same is the version of PW.1 before the Court. However there is some improvement in the version of PW.1 before the Court to the effect that Accused Nos.1 to 5 assaulted the deceased. 11. The version of PW.1 is fully supported by the version of PW.2. Though it is the case of the prosecution that PW.2 has sustained injury on his head, there is no supporting material to that effect on record. Neither the wound certificate is produced nor the doctor who examined the victim nor the case sheet is brought on record in support the case of the prosecution that PW.2 is the inured eye witness. Even ignoring that PW.2 has sustained any injury, his presence on the spot cannot be doubted. His presence is forthcoming specifically in the first information report lodged by PW.1 immediately after the incident. Even ignoring that PW.2 has sustained any injury, his presence on the spot cannot be doubted. His presence is forthcoming specifically in the first information report lodged by PW.1 immediately after the incident. PW.2 has also emphatically deposed that it was Accused No.2 who assaulted on the head of the deceased. In the examination-in-chief itself PW.2 has deposed that Accused No.2 all of a sudden hit the victim Manjunath with the bottle on his head; Accused No.3 assaulted with a club on the head of PW.2. No overtactis specified against Accused No.1 or Accused Nos.4 and 5. We find that the presence of PW.2 cannot be doubted on the spot. He is the only person who was talking with the deceased during the relevant point of time. Therefore the version of PW.2, even according to the case of the prosecution, needs to be believed. If the version of PW.2 as found in the examination-in-chief itself is believed in toto, it makes clear that it was Accused No.2 who assaulted on the head of the deceased with the beer bottle and others must have been present. Same is the version of PWs.3, 4,5,8 and 9. PW.3 has deposed that Accused Nos.1,2 and 5 had assaulted the victim Manjunath with the beer bottle. PW.4 on the contrary has deposed that Accused Nos.1 and 2 have assaulted the victim Manjunath with the beer bottle on his head and the bottle broke. PW.5 also has deposed that Accused Nos.1 and 2 assaulted the victim Manjunath with beer bottle an the hind portion of the head; The bottle broke and thereafter Accused No.2 pulled out a club from his back and assaulted on the head on the hind portion. Almost similar version is forthcoming from PW.9. 12. On meticulous evaluation of the material on record, we find that the eye witnesses are consistent to the effect that it is Accused Nos.1 and 2 who assaulted the deceased. Out of them, Accused No.2 suddenly took out a beer bottle and assaulted on the hind portion of head of the deceased Manjunath and subsequently he took out club and assaulted on the deceased. Out of them, Accused No.2 suddenly took out a beer bottle and assaulted on the hind portion of head of the deceased Manjunath and subsequently he took out club and assaulted on the deceased. Insofar as role of other accused is concerned, we feel unsafe to rely upon the versions of the eyewitnesses for convicting them for major offence inasmuch as the material on record is not sufficient to conclude that they participated in the assault on the deceased during relevant point of time. In our considered opinion, the trial Court is justified in observing that the evidence as against other accused is shaky and the material on record is not sufficient to convict them. 13. The postmortem report Ex.P12 mentions that the deceased had sustained as many as 10 injuries. Out of them, nine injuries are either contusions or abrasions on various portions of the body. However injury no.1 is grievous injury on the head. The doctor has opined that the death is due to comaas a result of head injury sustained. The evidence of the doctor PW.14 who conducted the postmortem examination also clarifies that the single injury is sustained by the deceased on his head. Another doctor who examined the victim at Baptist Hospital also has deposed that except one injury on his head, the deceased Manjunath did not sustain any other injury. Thus it is clear that the death has occurred due to one injury which is sustained by the deceased on his head. The material on record, more particularly the evidence of PWs.2 and 5 clearly reveals that it was Accused No.2 who assaulted on the head of the deceased. PW.2 has further clarified that Accused No.2 took out beer bottle suddenly and assaulted on the head of the deceased. Therefore, we are of the opinion that the injury sustained by the deceased on his head is caused by Accused No.2 only. 14. Insofar as Accused No.1 is concerned, he is liable to be convicted for the offence under Section 324 of IPC inasmuch as he has voluntarily caused certain injuries other than the fatal injuries found on the person of the deceased. He has also participated in the incident alongith Accused No.2, but without common intention or common object. Therefore he is liable to be punished for the act committed by him. He has also participated in the incident alongith Accused No.2, but without common intention or common object. Therefore he is liable to be punished for the act committed by him. As aforementioned, the deceased has sustained certain simple injuries on other portions of the body other than the injury No.1 (which was on the vital portion of the body). Since this Court finds that Accused No.1 also has participated in the crime to certain extent by inflicting certain simple injuries on the deceased, he shall be punished for the offence under Section 324 of IPC. We find from the records that Accused No.1 has already undergone imprisonment for about six months, which may be the sufficient sentence that can be imposed on Accused No.1 for the offence under Section 324 of IPC under the facts and circumstances of the case. It is needless to observe that Accused No.1 is entitled to the benefit of set off under Section 428 of Cr.PC and therefore he need not be imprisoned any further in this case. 15. There is nothing on record to show that there was prior meeting of minds among the accused. It is not the case of the prosecution that all the accused have conspired together and came to the spot with a view to take away the life of the deceased. The material on record is not sufficient to conclude that the accused had the common object to do away the life of the deceased. In this view of the matter, other accused cannot be punished by taking the help of Section 149 of IPC. Accused No.2 alone is responsible for this act of causing grievous injury on the head of the deceased Manjunath. 16. As aforementioned, the evidence of PW.2 makes it clear that Accused No.2 suddenly took out a beer bottle and assaulted on the head of the deceased. There cannot be any dispute that Accused Nos.1 and 2 and others must have come to the spot in a group. But there is no material to show that they had the common object of doing away with the life of the deceased. They must have come to the spot for quarreling with the deceased or for any other reason. At that point of time, Accused No.2 suddenly took out the beer bottle and assaulted on the head of the deceased. But there is no material to show that they had the common object of doing away with the life of the deceased. They must have come to the spot for quarreling with the deceased or for any other reason. At that point of time, Accused No.2 suddenly took out the beer bottle and assaulted on the head of the deceased. So also he assaulted the deceased with the help of club. Since the incident has taken place without premeditation and suddenly, the advocate for the accused is justified in arguing that Accused No.2 may not be punished for the offence under Section 302 of IPC and the offence at the most may fall under Section 304 Part II of IPC. However the contention that Accused NO.2 may be punished for the offence under Section 326 of IPC cannot be accepted. The very fact that Accused No.2 has chosen thick beer bottle for assaulting on the vital part of the body and which has resulted in the death of the deceased would show that the offence will not fall under Section 326 of IPC. However the offence may fall under Section 304 Part II of IPC. 17. In view of the aforementioned facts and circumstances, we are of the opinion that the trial Court is not justified in acquitting Accused No.2 for the offence under Section 304 Part II of IPC. We find that the reasons assigned by the trial Court while acquitting Accused No.2 cannot be sustained. The view taken by the trial Court while acquitting Accused No.2 cannot be said to be plausible view under the facts and circumstances of the case. It was not open for the trial Court to acquit the accused casually based on the minor variations in the versions of the witnesses. There are bound to be certain exaggerations or little variations in the versions of the eyewitnesses, more particularly when the versions of the eyewitnesses are recorded in the Court after some time of the incident. But the entire evidence will have to be scrutinized by the trial Court in the proper perspective. On reconsidering the material on record, we are of the opinion that though the trial Court is justified in acquitting other accused for the offence under Section 302 of IPC, is not justified in acquitting Accused No.2 – Vasantha for the offence under Section 304 Part II of IPC. On reconsidering the material on record, we are of the opinion that though the trial Court is justified in acquitting other accused for the offence under Section 302 of IPC, is not justified in acquitting Accused No.2 – Vasantha for the offence under Section 304 Part II of IPC. Accused No.1 also needs to be convicted for the offence under Section 324 of IPC. Since he has already undergone imprisonment for about six months, the same may be the appropriate punishment. 18. We have heard the Sri Dinesh Kumar, learned counsel for the accused and Sri Venkatesh, learned Addl. SPP on the question of sentence relating to Accused No.2. Sri Dinesh Kumar submits that the Accused No.2 was 23 years old at the relevant point of time and the maximum leniency may be shown in awarding the sentence. The said submission is opposed by the learned Addl. SPP who submits that no leniency can be shown having regard to the fact that the crime committed by the accused is heinous in nature. 19. In view of the above, we find that it is expedient to sentence Accused No.2 to undergo imprisonment for six years and to pay fine of Rs. 25,000/- with default clause for the offence under Section 304 Part II of IPC. Accordingly, the following order is made: 1. Both the appeals viz., Crl.A No.691/2000 and Crl.A. No.371/2911 are allowed in part. 2. The Judgment and Order of acquittal passed by the trial Court acquitting Accused Nos.3 to 13 in S.C. No.330/2004 stands confirmed. 3. The Judgment and Order of acquittal passed by the trial Court acquitting Accused Nos.1 and 2 stands set aside. 4. Accused No.2 Vasantha is convicted for the offence under Section 304 Part II of IPC. He is sentenced to undergo imprisonment for six years and to pay fine of Rs.25,000/- (Rupees twenty-five thousand only). In default of payment of fine, the convicted Accused No.2 shall undergo further imprisonment for 2½ years. In case of recovery of fine, the entire fine so recovered shall be paid to the parents of the deceased. 5. The period of imprisonment already undergone by Accused No.2 shall be given set off under Section 428 of Cr.PC. 6. Accused No.1 – Veeresh is convicted for the offence under Section 324 of IPC and he is sentenced to undergo imprisonment for the period which is already undergone by him. 5. The period of imprisonment already undergone by Accused No.2 shall be given set off under Section 428 of Cr.PC. 6. Accused No.1 – Veeresh is convicted for the offence under Section 324 of IPC and he is sentenced to undergo imprisonment for the period which is already undergone by him. Hence he need not be taken to custody any further for the offence in question.