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2017 DIGILAW 963 (KAR)

SUNDRAPPA v. STATE OF KARNATAKA

2017-06-23

JOHN MICHAEL CUNHA, RAVI MALIMATH

body2017
JUDGMENT : Ravi Malimath, J. The case of the prosecution is that on 25.10.2009 at about 9.00 p.m., accused went near the deceased Kumara, who was having his food. PW1-Gurumallamma was serving food to the deceased. Accused told the deceased not to harvest the sugarcane crop on the following day. However, the deceased told him that Rechanna had given him money for harvesting the said crop and therefore, he would cut it on the next day. Accused stated that he would be able to cut it provided he is alive. He went into the room, brought the chopper and assaulted on the backside on the head of deceased Kumara as well as on the forehead. Deceased-Kumara sustained bleeding injuries and thereafter, he was shifted to the hospital. On the following day, deceased succumbed to the injuries. Based on the complaint lodged by PW2, case was registered initially for the offence punishable under Section 307 of IPC. After the death of deceased, it was changed to Section 302 of IPC. Investigation was taken up. Charge sheet was filed. Charges were framed. The accused pleaded not guilty. The matter was set down for trial. In order to establish its case, the prosecution in all examined 13 witnesses and got marked 17 exhibits along with 06 material objects. By the impugned judgment, the accused was held guilty of the offence punishable under Section 302 of IPC. He was sentenced to undergo rigorous imprisonment for life, along with fine of Rs.50,000/- and in default of payment of fine, to undergo further imprisonment for a period of 05 months. Aggrieved by the same, this appeal is filed by the convict. 2. Learned counsel for the appellant contends that, the impugned judgment of the trial court is erroneous and liable to be quashed. The trial court failed to consider the discrepancies in the prosecution case. The prosecution therefore, failed to establish its case beyond all reasonable doubt. Hence, he pleads that the appeal be allowed by acquitting the convict. 3. On the other hand, Shri. Vijayakumar Majage, learned Additional State Public Prosecutor, disputes the same. He submits that there are cogent evidence of eye witnesses PWs-1, 2 and 5. They have narrated the manner in which the incident has taken place. Nothing worthwhile has been elicited in their cross-examination to disbelieve their evidence. The Trial Court on consideration of the material, rightly convicted the accused. He submits that there are cogent evidence of eye witnesses PWs-1, 2 and 5. They have narrated the manner in which the incident has taken place. Nothing worthwhile has been elicited in their cross-examination to disbelieve their evidence. The Trial Court on consideration of the material, rightly convicted the accused. Hence, there is no error that calls for interference. 4. PW1 has stated that the accused is her husband's younger brother. Deceased Kumara is the son of accused's elder sister. Rechanna is her husband's brother. That there was a partition in the family properties between the accused and his brothers. However, all are living under the same roof. Deceased Kumara was cultivating the land which fell for the share of Rechanna and his mother-Kempamma. The accused was not cultivating the land that fell to his share. Therefore, his land has become barren. About 5 to 6 months prior to the incident, accused came back from Bengaluru and started residing in the said house. On the date of the incident, at about 8.30 p.m., family members were watching the television, including the deceased. At that time, there was a power cut. Hence, she lit a kerosene lamp. She was serving food to the deceased Kumara. Accused came there and asked the deceased as to whether he would cut the sugarcane crop on the next day. Deceased Kumara replied that he has been instructed by Rechanna and on the basis of which, he has engaged the labourers to cut the sugarcane crop. Apparently, accused was enraged and told him that he could cut the crop if he is alive. He went to another room, brought the chopper, assaulted on the back side of the head and forehead of the deceased Kumara. Deceased sustained severe bleeding injuries. He was thereafter taken to the hospital. On the next day, deceased succumbed to the injuries. PW1 was cross-examined by the defence. She has reiterated her evidence in the cross. Nothing worthwhile has been elicited in the cross-examination so as to disbelieve her evidence. 5. PW2 is the complainant. He has stated that the deceased Kumara was his elder brother's son. The accused is the brother of Mahadevappa's wife. The deceased was staying in the house of the mother of accused Kempamma. She has reiterated her evidence in the cross. Nothing worthwhile has been elicited in the cross-examination so as to disbelieve her evidence. 5. PW2 is the complainant. He has stated that the deceased Kumara was his elder brother's son. The accused is the brother of Mahadevappa's wife. The deceased was staying in the house of the mother of accused Kempamma. That on the date of incident at about 9.00 p.m. PW1 came to his house and stated that accused assaulted deceased Kumara with chopper and he fell down. He went to the house of deceased Kumara and saw that he was lying in a pool of blood. At that time, CW13-Revanna, CW22-Shivanna, CW14-Mahalinga and others had caught the accused and made him to sit near Basavana Temple. At that time, accused was stating that he has assaulted the deceased with the chopper and does not bother about the consequences. 6. PW3 has stated that he knows the deceased Kumara as well as the accused. He has stated that deceased has engaged the labourers to cut the sugarcane crop on the next day. When he was near the house, PW1 came running and told that accused has assaulted deceased Kumara with chopper and he is laying in a pool of blood and asked him to telephone CW19-Rechanna. Thereafter, he telephoned him and he told him to secure the ambulance and take the deceased Kumara to Chamaraja-nagar Hospital. The accused was caught and kept near Basavana Temple. On the next day police came to the place of incident and observed the spot. He has reiterated the said averments in the cross-examination. 7. PW4 has stated that he knows the deceased and the accused. CW2 had requested him to go to Nallur and bring the ambulance to shift the deceased Kumara to hospital. That on the next day at about 9.00 a.m. police came to the house of deceased and conducted the mahazar. Police seized the stained flooring pieces as well as they seized the lungi of the deceased. He was the signatory to the said mahazar. He was also a signatory to the recovery of the chopper at the instance of the accused. 8. PW5 also knows the deceased and the accused. He has narrated the same incident with regard to cutting of the sugarcane crop on the next day. He was the signatory to the said mahazar. He was also a signatory to the recovery of the chopper at the instance of the accused. 8. PW5 also knows the deceased and the accused. He has narrated the same incident with regard to cutting of the sugarcane crop on the next day. He has stated that deceased Kumara went inside the house saying that he would take food, they were all sitting near the temple. Temple is situated by the side of the house of deceased Kumara and the accused. They heard the galata in the house. They did not enter the house as it was usual galata between the accused and the deceased Kumara. Deceased Kumara was saying that he would cut sugarcane crop, accused was telling him not to cut the same. Thereafter, he stated that he came out of the house and kept a watch on the accused. The said witness, though was projected as an eye witness, the evidence does not relate to the fact that he has seen the incident. 9. PW6 is the doctor, who initially examined the deceased at around 11.20 p.m.. He has stated that the assault took place at 9.00 p.m. He found injuries over the head of the deceased in the mid line of the skull from front to back, the skull bone was opened in the same area and there was a cut wound on left eye brow. He sutured the head injury, gave first aid and referred the deceased Kumara to K.R. Hospital, Mysore. 10. PW7 is the CPI who has done part of the investigation. He has stated that based on the complaint, he took up further investigation, he recorded the statement of witnesses and further statements were also recorded. He sent the body for post-mortem. He has also obtained MLC extract from the Chamar-ajanagar Hospital. The weapon and the clothes of the deceased as well as the flooring pieces stained with blood were also seized. 11. PW8 is the PSI and Investigation Officer, who has done most of the investigation. He has received the FIR and registered the complaint. On the date of the incident, he received information at about 12'O' clock in the mid-night by a telephone message with regard to the assault. Thereafter, he went to the hospital and met the duty doctor. 11. PW8 is the PSI and Investigation Officer, who has done most of the investigation. He has received the FIR and registered the complaint. On the date of the incident, he received information at about 12'O' clock in the mid-night by a telephone message with regard to the assault. Thereafter, he went to the hospital and met the duty doctor. On the basis of the complaint a case was registered by him. On the same night at about 3.00 a.m. accused was produced before him and he was arrested. 12. PW9 is the Assistant Director of RFSL Mysuru. He speaks about the chemical examination of the articles sent to him. 13. PW10 is the doctor who has conducted post-mortem on the body of the deceased and issued the Post-Mortem Report. 14. PW11 is the Constable. He received the call on his mobile phone with regard to the incident and thereafter, he informed his superior, namely, PSI. 15. PW12 is the Medical Officer who has examined the deceased in the casualty on the date of the incident. 16. PW13 is the another Doctor who has given a treatment to the deceased on the date of the incident. He noted the fractures sustained by the deceased. It is on this evidence, the trial court was of the opinion that the prosecution has established its case beyond all reasonable doubt and by placing reliance on the evidence of PW1 and recoveries of other materials, convicted the accused. 17. On considering the evidence on record, we do not find any error that calls for interference. PW1 is the eye witness who has seen the incident. When she was serving food to the accused, altercation took place between the deceased Kumara and the accused; accused brought the chopper and assaulted on the vital parts of the deceased Kumara. He sustained grievous injuries. Nothing worthwhile has been elicited in the cross-examination to disbelieve her evidence. She has reiterated her evidence in the cross-examination also. When the eye witness has seen the incident and there is nothing to disbelieve her evidence, the trial court was justified in accepting the evidence. Projecting the evidence of PW5 as the alleged eye witness, cannot be accepted because there is no evidence that he has actually seen the incident. PW2 has also not seen the incident. But he came to know about the same after the act was committed. 18. Projecting the evidence of PW5 as the alleged eye witness, cannot be accepted because there is no evidence that he has actually seen the incident. PW2 has also not seen the incident. But he came to know about the same after the act was committed. 18. When the evidence of PW1 is clear and cogent, the trial court was justified in accepting the same. The incident has occurred in the presence of PW1 and assault by the accused was in a brutal manner on the vital parts of the body of the deceased. The trial court has considered the same and rightly convicted the accused. We find no material inconsistency in appreciation of evidence as well as its application to the facts of the case. Consequently, the appeal is dismissed as devoid of merits.