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2018 DIGILAW 932 (KAR)

Lakanna v. State of Karnataka

2018-08-30

S.SUJATHA, SREENIVAS HARISH KUMAR

body2018
JUDGMENT : 1. The judgment dated 18.01.2014 in S.C.No.10002/2013 on the file of V Addl. District and Sessions Judge, Tiptur, has given rise to this appeal by the accused. The prosecution case is as follows: 2. On 14.02.2013 at about 6.30 p.m. PW-1 Mariyanna and Krishnaiah were returning to their houses. PW-1 was in the front and Krishnaiah was little bit behind him, actually he was tending back his goats that he had taken for grazing. As they came near the house of the accused, they heard accused saying after seeing them that he would chop off them with sickle and assault with chappal. When they asked the accused as to why he was speaking like that, the latter gave a challenge to them to dare to enter his house. Then Krishnaiah entered the house of the accused; and PW-1 also followed him. Suddenly the accused took a macchu and gave a blow on the right side chest portion of Krishnaiah. By the time PW- 1 came to know as to what was happening, Krishnaiah had fallen down sustaining bleeding injury. PW-1 brought out Krishnaiah in his arms from inside the house of the accused and laid him down. All the villagers gathered and when he was being taken to the hospital in an ambulance, he breathed his last on the way. With regard to this incident, PW-1 made a report to the police as per Ex.P.1 on 14.02.2013 at 20.55 hours. The police held investigation and filed charge sheet against the accused. 3. The prosecution examined 9 witnesses, PWs-1 to 9, got marked 8 documents as per Exs.P.1 to 8, and 8 material objects as per M.O.1 to 8. One more witness, the Inspector of Police i.e, the investigating officer was examined as CW-1 and through him, 3 documents as per Exs.C-1 to Ex.C-3 were marked. After evaluating the evidence, the trial court came to conclusion that the prosecution was able to prove its case beyond reasonable doubt and held the accused guilty of offence under Section 302 IPC, and convicted him to undergo life imprisonment and pay fine of Rs.5,000/-; and undergo imprisonment for one month in case of default to pay fine. The accused has challenged this judgment of the trial court. 4. We have heard the arguments of the learned counsel for appellant as also the Additional State Public Prosecutor. The accused has challenged this judgment of the trial court. 4. We have heard the arguments of the learned counsel for appellant as also the Additional State Public Prosecutor. The appellant’s counsel argued that the evidence of PW-1 is not believable, as his deposition shows that the accused assaulted on the right side chest of the deceased with a ‘macchu’ using his right hand by standing in front of the deceased. This was rather difficult, as one can easily inflict injury on the left side portion of the body of a person standing in the front, and not on the other side. He further argued that because the deceased had sustained injury on his right side chest and infliction of injury by the accused standing in front of the deceased being impossibility, PW-1, who has deposed so, cannot be called an eye witnesses. His testimony is not trustworthy. The judgment of Sessions Court based on evidence of PW- 1 is therefore erroneous. 5. He highlighted another point that the age of the accused at the time of incident was 85 years. It is not possible to believe the prosecution case that the deceased was assaulted by an aged person, who was not even able to lift a macchu with his hand. The last point argued by learned counsel was that even if the prosecution case is believable and can be said to have been proved, but the case proved is culpable homicide not amounting to murder punishable under Section 304 Part II IPC, because the eye witness’s account itself shows the accused being provoked by the deceased by entering the former’s house. 6. The learned Addl. State Public Prosecutor argued that PW-1 is not only an eye witness but also first informant. His evidence is very consistent. He has not been discredited in the cross examination. His cloth was also stained with blood when he brought the deceased in his arms after the latter fell down sustaining injury. The serological examination answered positive for ‘A’ group human blood, which was the blood group of the deceased. The investigation officer also recovered the weapon produced by the accused, and same blood was detected on this weapon also. Therefore the prosecution has proved its case beyond reasonable doubt; there is no error in appreciation of evidence. A clear case of murder has been proved. 7. The investigation officer also recovered the weapon produced by the accused, and same blood was detected on this weapon also. Therefore the prosecution has proved its case beyond reasonable doubt; there is no error in appreciation of evidence. A clear case of murder has been proved. 7. The learned Sessions Judge has believed the evidence of PW-1 and the recovery of the weapon as also blood stained clothes of the accused. His finding is that there is no inconsistency in the evidence of PW-1. He has also held that PW-1 has not deposed that the accused assaulted the deceased by standing in the front, and therefore defence theory fails. According to the learned Sessions Judge, a case of murder has been proved. 8. We have perused the oral testimonies of all the witnesses. PW-1 was the one who was coming along with the deceased and saw the accused giving a sort of challenge to them to dare to enter his house. He has also narrated that when the deceased entered the house of the accused, the latter took a macchu that had been kept by the side of ragi bags and assaulted on right side chest portion of the deceased. He could not prevent it as by the time he could react, everything was over. He has also stated that he brought the deceased in his arms out side the house of accused and laid him down, and during that time, the shirt he was wearing also stained with blood. The investigating officer seized the shirt of PW-1 during investigation. The blood stains detected on his shirt answered positive for ‘A’ group human blood which was also the blood group detected on the clothes of the deceased, the weapon and the blood stained soil. Ex.C-3 is the FSL report. Therefore the testimony of PW-1 is not only believable but finds corroboration from Ex.C.3. The evidence with regard to recovery of incriminating materials, M.O.1 to 8 is very much believable, there is no need to refer to it. The age of the accused is prominently brought to fore in order to improbabalize the prosecution case. The argument of the appellant’s counsel in this regard cannot be accepted in view of evidence given by PW-5 Dr. Shivakumar who examined the accused also. He has stated that the accused was quite fit physically and able to assault with macchu. 9. The age of the accused is prominently brought to fore in order to improbabalize the prosecution case. The argument of the appellant’s counsel in this regard cannot be accepted in view of evidence given by PW-5 Dr. Shivakumar who examined the accused also. He has stated that the accused was quite fit physically and able to assault with macchu. 9. Another point of argument of learned counsel for appellant needs to be answered here. He argued that one cannot inflict injury on the right side chest portion of the person standing in the front. Of course one can imagine a situation whether it is possible for one, a right hander, to give a blow with a weapon on the right side of the person of another standing in the front. The answer is ‘may be possible’, but the angle of assault may be little bit inconvenient. This argument is not probable to be accepted in as much as, while cross examining PW-1, he was not questioned as to from what direction the deceased was assaulted. Moreover, the shirt, M.O.5 that the deceased was wearing stained with blood and the blood group matched with the blood group detected on the clothes of the deceased. The accused alone should answer as to how his shirt stained with blood. There is no explanation for this. Another important aspect is that while cross examining PW-1, it was suggested to him that the accused was not in his house when the incident took place. That means, he has pleaded alibi, but has failed to prove it. If this theory of alibi is to be accepted, the detection of blood in his shirt has to be rejected, but it is not possible. Therefore looked from any angle, it can be concluded that evidence of PW-1 alone establishes prosecution case. The findings of the learned Sessions Judge cannot be disturbed. 10. The learned counsel for appellant argued a point that there was provocation by the deceased and therefore the case could be brought down to culpable homicide not amounting to murder punishable in accordance with 304 (II) IPC. For this purpose prosecution case requires examination within the ambit of exception 1 to Section 300 IPC, which reads as below :- “Exception 1 – When culpable homicide is not murder. For this purpose prosecution case requires examination within the ambit of exception 1 to Section 300 IPC, which reads as below :- “Exception 1 – When culpable homicide is not murder. - “Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident”. The above exception is further qualified by three provisos, of which the relevant here is the first one which is “That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any other person”. 11. Harking back to the prosecution case for analyzing the circumstance that gave rise to occurrence of incident, it is seen that it was the deceased who provoked the accused. It was the accused who, seeing the deceased as also PW.1 started saying that he would kill them and assault them with chappal, and further posed a challenge to them to dare to enter his house. This made the deceased and PW.1 to enter the house of the accused. This circumstance makes it amply clear that the initial provocation was by the accused. The circumstances are not indicative of initial provocation by the deceased or PW1, so as to say that the accused lost control over himself. 12. The case can be examined with reference to nature of injury suffered by the deceased. Ex.P4 is the post mortem report given by PW5-Dr.M.N.Shiva Kumar. The injury noted is ‘a cut lacerated wound measuring 2.5” x ½” x 2.5”, just above and lateral to right mammary region. This is the external injury, and corresponding internal injury is “fracture of ribs, 4th and 5th with laceration of intercostals space about 2 inches, and lung was torn and ruptured at fractured site”. PW5 has stated that there was taring of middle lobe of right lung to the extent of 1 x ½ x 1 inches, and it was elicited from him in the cross examination that the death might be possible soon after sustaining injury as mentioned in the post mortem report. Analization of medical evidence helps to draw inferences that the whole case may be brought within ambit of ‘Thirdly’ of Section 300 IPC. Analization of medical evidence helps to draw inferences that the whole case may be brought within ambit of ‘Thirdly’ of Section 300 IPC. The intention of the accused to cause bodily injury can be inferred from his utterances when he saw the deceased and PW1; and the actual act causing injury. The actual incident of assault by the accused indicates the bodily injury intended to be inflicted. The doctor’s evidence fortifies the effect of injury, in the sense that the injury was sufficient in the ordinary course of nature to cause death. Even from the perception of a common man, a deep injury on the chest is dangerous to one’s life. It is also possible to bring the incident within the scope of ‘fourthly’ of Section 300 IPC, as it is within every body’s knowledge that injury sustained by deceased was imminently dangerous and in all probability causes death. Therefore, rejecting the argument of appellant’s counsel, we find that the judgment of Sessions Court needs to be confirmed. Appeal is dismissed, impugned judgment is confirmed.