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2019 DIGILAW 2300 (KAR)

Shamrao v. State of Karnataka

2019-12-13

HEMANT CHANDANGOUDAR, SREENIVAS HARISH KUMAR

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JUDGMENT : 1. This appeal is filed by the accused in Sessions Case No.91/2011 on the file of IV Additional Sessions Judge, Kalaburgi whereby he has been convicted for the offence punishable under Section 302 of Indian Penal Code (for short 'IPC') and sentenced to undergo life imprisonment and pay a fine of Rs.5,000/- with default clause of simple imprisonment for six months. 2. Case of the prosecution is as follows:- Lalappa S/o Ambanna Chandanakera resident of Chengta Village, lodged a complaint, stating that on 30.03.2004, he returned to his village along with Mallikarjun and Hanumanth after doing coolie work. Taking rest for a while he was going to his house, accused came from the opposite side and abused him in filthy language and stabbed him with a knife on his stomach due to which he suffered bleeding injury. After raising hue and cry, Mallikarjun and Hanumanth came to the spot and on seeing them, accused ran away from the spot. He further stated that he was taken to his house by Mallikarjun and Hanumanth and he narrated about the incident to his mother. Later on he was taken to the Government Hospital, Kalaburgi. He has stated in his complaint that there was enmity between the accused and one Gundappa and since the accused had seen him moving with Gundappa, and with an intention to murder him, the accused stabbed him. The deceased himself reported this incident to police and then an FIR was registered. In the meanwhile, injured complainant Lalappa succumbed to the injuries in the hospital on 8.4.2004. Hence, a requisition was sent for including the offence punishable under Section 302 of IPC. The investigation Officer visited the hospital and conducted inquest panchanama on the dead body of Lalappa and subjected the dead body to post mortem examination and clothes lying on the dead body of the deceased Lalappa were seized by conducting panchanama in presence of panchas and after examining and recording statement of witnesses, the investigation Officer filed a charge-sheet against the accused for the offences punishable under Sections 504 and 302 of IPC. 3. The prosecution, in order to prove the guilt of the accused in all examined PWs. 1 to 15 as witnesses and got marked Exs.P.1 to P. 11 and M.Os.-1 to 3. 3. The prosecution, in order to prove the guilt of the accused in all examined PWs. 1 to 15 as witnesses and got marked Exs.P.1 to P. 11 and M.Os.-1 to 3. The Sessions Court after appreciating the evidence of the prosecution came to a conclusion that the prosecution was able to prove the case beyond reasonable doubt and consequently found the accused guilty of the offence punishable under Section 302 of IPC and sentenced him to as aforesaid. Accused was acquitted of the offence punishable u/s 504 of IPC. 4. Learned counsel for the appellant assailing the findings of the trial court, submitted that the prosecution has failed to establish that the death of the deceased Lalappa is homicidal one and further the doctor who conducted the post mortem examination is not examined because of his death and the post mortem report is not proved by examining any other doctor. He further submitted that having regard to the facts and circumstances of the case the offence punishable under Section 302 of IPC is not attracted. He further submitted that there is no motive for the accused to commit murder. He further submitted that there is no direct nexus between the cause of death and the alleged act of the accused. The evidence of PWs. 1 and 2 is not cogent and consistent and the same cannot be believed. He further submitted that the accused may be acquitted because the prosecution has not proved the case beyond reasonable doubt. The learned counsel for the accused has relied upon the decision of this Hon'ble High Court in the case of State of Karnataka vs. Krishnanaik, 2018 Cr. R. 655 (Kant.) in which it is held that where the injuries are caused with the knife, whether there was an intention to murder would still be doubtful and to that extent, benefit of doubt should be given to the accused, and not to treat it as an offence under Section 302 of IPC but lesser punishment is to be given to the accused under Section 304 Part II of IPC. He has also relied upon the decision of this Hon'ble High Court in the case of Dashrath vs. State of Karnataka, ILR 2010 Kar. 1318, in support of his arguments that deceased was not in a condition to give oral statement when he was undergoing treatment at the hospital. 5. He has also relied upon the decision of this Hon'ble High Court in the case of Dashrath vs. State of Karnataka, ILR 2010 Kar. 1318, in support of his arguments that deceased was not in a condition to give oral statement when he was undergoing treatment at the hospital. 5. Learned Additional State Public Prosecutor submitted that the trial court taking into material evidence on record, is justified in convicting the appellant for the offence punishable u/s 302 of IPC. Hence sought for dismissal of the appeal. 6. We have examined the arguments advanced by the learned counsel for the appellant as well as the State and also perused the records. 7. PW-1 in his evidence admits that after hearing somebody saying that "have been beaten" he went towards the house of deceased Lalappa and saw the deceased having sustained injury on his stomach. He also admits that he had taken injured Lalappa to the hospital in a jeep. However, he denied the fact of having given a statement before the investigation officer as per Ex.P.1 to the effect that he saw accused running away from the spot holding a knife. In his cross-examination, he has admitted that he stayed with Lalappa in the hospital for two days but he had not asked injured Lalappa as to who had assaulted him. Having stayed with injured Lalappa for two days, his evidence to the effect that he had not asked injured Lalappa as to who had assaulted him cannot be believed. 8. PW-2 Hanumanth has in his evidence stated that on the date of incident he along with deceased Lalappa and Hanumanth returned back to their village after doing coolie work. After going back to the house he heard a sound of hue and cry and he saw number of people had gathered near the Tulaja Bhavani Katta and he also saw Lalappa having sustained injury on his stomach. He has further stated in his evidence that the people who had gathered near the spot told him that accused had assaulted Lalappa. In his cross-examination, he admits that he also saw accused Shamrao running away from the spot holding a knife in his hand and also admitted that deceased Lalappa had developed friendship with one Gundappa who was in inimical terms with the accused. He further admitted that after the incident, the accused absconded for about 4-5 years. In his cross-examination, he admits that he also saw accused Shamrao running away from the spot holding a knife in his hand and also admitted that deceased Lalappa had developed friendship with one Gundappa who was in inimical terms with the accused. He further admitted that after the incident, the accused absconded for about 4-5 years. Hence evidence of PW-2 clearly establishes that accused had stabbed deceased Lalappa with a knife. 9. PW-3 Smt.Chandramma is the mother of deceased Lalappa. In her evidence she has stated that PWs. 1 and 2 brought her injured son to her house and her injured son Lalappa told her that accused had stabbed him. In her cross-examination nothing is elicited so as to disbelieve her evidence. 10. PW-9 who was then working as Assistant Sub Inspector, in his evidence has stated after receiving the MLC report from the District Hospital, visited the hospital and recorded the complaint lodged by injured complainant Lalappa as per Ex. P. 6. 11. Ex.P.6 is the complaint lodged by deceased Lalappa on 31.03.2004 before PW-9 in which he has stated that he had been stabbed by accused with a knife on 30.03.2004. He has also stated in the complaint that the accused intended to murder him since he was moving around with Gundappa who was in inimical terms with the accused. He has also stated that PWs. 1 and 2 took him to his house after the incident and also told his mother about the incident. Perusal of Ex.P.6 indicates that there is an endorsement made by medical officer to the effect that the injured Lalappa is in a condition to give oral statement. This clearly establishes that Lalappa was conscious and in a position to give statement before PW-9 as per Ex.P.6. Hence the argument of the learned counsel for the appellant that the statement given by deceased Lalappa before PW-9 has no presumptive value is not tenable in law. The decision relied upon by the Learned Counsel for appellant is of no consequence. 12. The evidence of PWs. 2 and 3 and the statement made by deceased Lalappa in his complaint clearly establishes that it is the accused who stabbed Lalappa due to which he succumbed to the injures. 13. Ex.P.10 is the post mortem report. The decision relied upon by the Learned Counsel for appellant is of no consequence. 12. The evidence of PWs. 2 and 3 and the statement made by deceased Lalappa in his complaint clearly establishes that it is the accused who stabbed Lalappa due to which he succumbed to the injures. 13. Ex.P.10 is the post mortem report. The doctor who conducted the post mortem examination has opined that the death of Lalappa is due to septicemia as a result of stab injury. Doctor is not examined because of his death. PW-14 the then Circle Inspector of Police has stated in his evidence that he received the post mortem examination report. Nothing has been elicited so as to disbelieve his evidence. 14. The post mortem report and so also the evidence of PWs. 1 to 3 clearly establishes that Lalappa died due to stab injury sustained by him on his stomach and it is a homicidal death. 15. PW-9 in his statement has stated about drawing of panchanama as per Ex. P. 2 on the spot. PW-12 after taking over the investigation from PW-9 has conducted seizure panchanama as per Ex. P. 3 and seized one shirt and one lungi of deceased in presence of two panchas i.e. PW-5 & 6. He has further stated that after learning about the death of Lalappa he sent arequisition to the court for including the offence punishable under Section 302 of IPC. 16. Perusal of the evidence on record establishes that the accused after committing the offence absconded from the village of best of efforts of the police, his whereabouts were not known and it was only on 13.04.2011, he was arrested by the police. Conduct of the accused in absconding from the village after the incident for nearly 7 years is a relevant factor about his conduct, which can be considered. 17. From the Post Mortem Report it is clear that Lalappa died because of septicemia as a result of stab injury. Intention of the accused was to murder and merely because he sustained injury initially and after eight days he succumbed to the injury it cannot be said that the intention of the accused was not to commit murder. Hence the submission of the learned counsel for the appellant that accused has to be given lesser punishment for the offence punishable u/s 304 Part II is untenable. 18. Hence the submission of the learned counsel for the appellant that accused has to be given lesser punishment for the offence punishable u/s 304 Part II is untenable. 18. In view of the above, we do not find any reason to interfere with the well reasoned judgment of the Trial Court. The facts of the case do not warrant interference with the findings recorded by the Trial Court. 19. The appeal lacks merit and is accordingly dismissed.