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2019 DIGILAW 990 (KAR)

Devaraja Ramappa Ramannavar v. State Of Karnataka

2019-05-15

BELLUNKE A.S.

body2019
JUDGMENT : Bellunke A.S., J. This is an appeal filed by the accused-appellant against the order of conviction and sentence passed by the Principal District and Sessions Judge, Dharwad in Special Case No.82/2008 by order dated 24.08.2010. 2. By the impugned order the accused came to be convicted for the offence punishable under Sections 504 and 304 (II) of IPC and imposed sentence to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.15,000/- and in default of payment of fine amount, the accused shall further undergo simple imprisonment for one year. 3. The brief facts for the purpose of this appeal are: That on 29.04.2017 the deceased Devappa Mallappa Ramanavara, the husband of PW6, was sitting on the Katta of the house after finishing his dinner. At about 9.30 p.m., the accused Devaraja Ramannavar while passing on the road in front of the house of deceased by looking the deceased in a different manner. The deceased questioned him as to why he was gazing towards him. The accused started abusing him in filthy language stating that “Le bosadi magane ninna sokku bahala aagaithi, hinde hodetha bidhdhidhdhu nenapu aithi illa”. The accused after abusing the deceased lifted him and threw him on a slab stone. He picked up a butt of an axelying in front of the house and assaulted on the back of the deceased caused an injury. Thereby on hearing hue and cry PW9 to 11, PW3 Ramanna, PW4 Mahadevappa were came there and pacified the quarrel and the accused went away. At that time it was 11.30 p.m. Intimation was sent to PW7, the brother of the deceased and later to the wife of deceased, PW6 and also to PW8. The said persons came in the morning shifted the injured to a Hospital. Later the injured was shifted to German Hospital at Gadag Betageri. The Investigating Officer recorded the statement of the injured Devappa. The said complaint is at Ex.P14. On that basis Cr.No.42/2007 was registered for the offences punishable under Section 324 and 504 of IPC. FIR was sent to jurisdictional Court. Finally the injured was taken to Shivakripa Hospital, Hubli where he died on 08.05.2007. 4. The Police on receiving the intimation, the Investigating Officer went to the Hospital. Inquest Panchanama was conducted. After conducting postmortem examination, the dead body was handed over to the family members of the deceased. FIR was sent to jurisdictional Court. Finally the injured was taken to Shivakripa Hospital, Hubli where he died on 08.05.2007. 4. The Police on receiving the intimation, the Investigating Officer went to the Hospital. Inquest Panchanama was conducted. After conducting postmortem examination, the dead body was handed over to the family members of the deceased. Later, the accused was arrested and he was sent to Judicial Custody. The Investigation Officer recorded the statement of witnesses. After investigation, he filed a charge sheet against the accused for the offences punishable under Sections 504 and 302 of IPC. 5. After receipt of the charge sheet, the learned Jurisdictional Magistrate took the cognizance of offences supplied the copies of charge sheet and committed the case to the Sessions Court vide his order dated 18.07.2008 in C.C. No.7/2008. 6. After receipt of the records, the Sessions Court registered Sessions case against the accused. After hearing both the sides, the learned Sessions Judge framed charge against the accused for the offences punishable under 504 Section 302 of IPC. After conducting trial, the learned Sessions Judge found the accused guilty for the offences punishable under Section 504 and 302 of IPC. Accordingly, the accused convicted and sentenced for the offences punishable under Sections 504 and 304 (II) of IPC and imposed sentence to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.15,000/- and in default of payment of fine amount, the accused shall further undergo simple imprisonment for one year. Being aggrieved by the said judgment and order of conviction and sentence passed by the learned Sessions Judge the appellant accused filed the present appeal on following grounds : 1. The order of conviction and sentence are contrary to law and evidence on record. 2. It is erroneous and the same has resulted in failure of justice. 3. The trial Court has not considered the delay in lodging the FIR. The reasons assigned for ignoring the delay are not just and proper. 4. Though the alleged incident took place on 29.04.2007, the crime No.42/2007 came to be registered on 02.05.2007 as per Ex.P14. The victim died on 08.05.2007. The contents of Ex.P14 does not bear the endorsement of any doctor to the effect that the victim was in a fit condition to make statement. Ex.P14 has came into existence in the presence of relatives of the victim and the police. The victim died on 08.05.2007. The contents of Ex.P14 does not bear the endorsement of any doctor to the effect that the victim was in a fit condition to make statement. Ex.P14 has came into existence in the presence of relatives of the victim and the police. The trial Court wrongly believed Ex.P14 as dying declaration of the victim. It should have been held that Ex.P14 is not reliable and trust worthy document. The said document is a concocted document to suit the convenience of the case of the prosecution. 5. PW6, 7 and 8 are the related and interested witnesses. The statements were recorded. The statements are highly belated. No explanation much less satisfactorily explanation is assigned by the police regarding the delay in recording the statements. In view of undue delay in recording the statements of the witnesses who are relatives, the learned Session Judge should not have believed the above said witnesses. 6. The investigation is not fair. The trial Court could not have believed the evidence of police officials. 7. Proper presumption of law and facts are not drawn. 8. The trial Court has not properly and carefully assessed the evidence placed on record. 9. The very approach to the case by the trial court is wrong and erroneous and the same has resulted in wrong conviction and sentence. 10. There was no sufficient evidence to convict the appellant. 11. The trial Court has not properly appreciated the evidence on record. The approach of the trial court is one sided. 7. Hence, the appellant-accused has prayed to set aside the impugned judgment and order of conviction and to acquit him. 8. The learned counsel for the appellant submitted that there is inordinate delay in filing the complaint and registering the FIR. The said statement of complainant cannot be considered as dying declaration. The victim survives for few days, therefore, the delay in question is not explained. MLC was sent belatedly. The brother of the accused and his wife have not filed any complaint. There is over writing in Ex.P12. PW6 is not an eye witness. She came to the Village on the next day of the incident. The other witnesses, who were examined have not at all supported the case of prosecution. Even PW7 also did not file any complaint. The evidence of Investigation Officer is not at all believable. There is over writing in Ex.P12. PW6 is not an eye witness. She came to the Village on the next day of the incident. The other witnesses, who were examined have not at all supported the case of prosecution. Even PW7 also did not file any complaint. The evidence of Investigation Officer is not at all believable. There is no proper explanation as to why the endorsement of the Doctor was not taken on the statement of the victim. The witness who alleged to have informed the police was not examined by the Investigating Officer. PW6 is not an eye witness. No external injury was caused to the deceased. PW8 has admitted that the injured was not in a position to speak. Therefore, he could not have given the statement. The alleged statement of the deceased is not dyeing declaration. The evidence given by the PSI is contrary to the case in hand. Requisition of the statement of the victim was not given before sending the statement of injured. Therefore, the learned counsel for the appellant-accused prayed to allow the appeal. 9. The learned Additional Government Advocate argued that the PW6 and 11 are the witnesses. Motive on the part of the accused is proved by the evidence is by PW8. There is medical evidence on record to prove that the injuries suffered by the deceased was on account of assault. The trial Court has assigned cogent reasons for believing the evidence. The guilt of the accused has been proved beyond any reasonable doubt. Hence, the learned Additional Government Advocate prayed to upheld the trial Court judgment and dismiss the appeal filed by the appellant-accused. 10. On the basis of above said facts and arguments the points would arise for consideration: 1. Whether the prosecution had proved before the trial Court beyond any reasonable doubt that the accused intentionally insulted the deceased by abusing him in filthy words and committed offence under Section 504 of IPC, and culpable homicidal death of the deceased Devappa by throwing him on the slab stone, assaulting him with butt of an axe and thereby had committed the offence punishable under Section 304 II of IPC.? 2. Whether the appellant proves that the judgment of the trial Court is perverse, capricious against to the evidence on record, therefore, it is liable to the interfered with ? 3. What order ? 11. 2. Whether the appellant proves that the judgment of the trial Court is perverse, capricious against to the evidence on record, therefore, it is liable to the interfered with ? 3. What order ? 11. It is settled law that accused cannot be acquitted only on the ground that the witnesses have turned hostile. Even a portion of the evidence which is believable from the evidence of the hostile witnesses could be rel ied on. 12. The evidence of PW-1 clearly proves the place of incident. He is an attestator to the mahazar at Ex.P-1. He has also identif ied the weapon-M.O.1 used by the accused for the commission of the of fence. Nothing is elicited in the cross-examination of PW-1 so as to hold that no such incident has taken place at the place where panchanama was conducted. 13. PW-2 is stated to be another panch witnesses to the inquest panchanama at Ex.P-2. The evidence of these two witnesses would also probablize the fact alleged by the prosecution that the deceased was assaulted in a place shown in Ex.P-1 with M.O.1. PW-12-the doctor has categorically stated that the deceased died on account of the antimortem injuries suffered by her. The death is due to respiratory failure consequent of complication of spinal cord injury. Postmortem report is at Exs.P-9. He has also opined that the injuries sustained by the deceased could have been caused by a wooden stick similar to M.O.1. It is also possible for a person to die after sustaining spinal cord injury consequent upon a blow from the wooden stick similar to M.O.1. He has deposed that if a person is lifted and violently thrown on a stone slab, neck may bend causing injury to the spinal cord. In the cross-examination, he has stated that a person would get such type of injuries if he falls backwards. In the instant case, there was no head injury. Therefore, the deceased having fallen down under the influence of alcohol is not at al l an acceptable defence. The Doctor-PW-12 has categorically opined that if a person fall by losing his balance under intoxication, the fracture of ribs may be caused provided he falls on a protruding blunt object. If a person is violently beaten, there could be external injuries like contusion, scratch, abrasion etc. The suggestion is made that the injured was not treated properly and the deceased died. If a person is violently beaten, there could be external injuries like contusion, scratch, abrasion etc. The suggestion is made that the injured was not treated properly and the deceased died. That cannot be a defence at all. In all cases, it cannot be expected that when a person is hit, other than the head, possibility of sustaining bleeding injury is not at all possible unless he is hit with a sharp edged weapon. 14. PW-14 is the doctor who had seen the injured when he was alive on 30.04.2007 at 10.00 am when he was brought to the hospital with a history of assault by one Devaraj at 12.00 midnight. This also corroborates the fact that the injuries are on account of assault and not by fall. He sustained cervical cord injury. He has deposed that the injured was not in a position to move his four limbs. He administered first aid to the injured and referred to a Neurosurgeon at Hubli. He issued wound certificate as per Ex.P-12 and case sheet is produced at Ex.P-13. He has opined that if a person is forcibly dropped on a wooden stone slab, there is possibility of sustaining cervical cord injury. He has further deposed that if a person is assaulted with a weapon like a butt of an axe M.O.1, there is possibility of sustaining cervicalcord injury. In his cross-examination he has elicited that they have given intimation to the police but before the police could arrive, the patient was already shifted. Therefore, there was no delay in informing the pol ice about the incident. Further, PW-14 in his cross-examination at paragraphs 6 and 7 has stated as under: “6. The type of injury sustained by the said patient can also be caused by sudden extension of the neck or by fracture of the vertebrae or due to internal bleeding. If you ask me whether a person can sustain such type of cervical injury due to sudden fall, I can say that on account of sudden fall from a height of about 10 or 12 feet, such type of injury could be sustained. It is not true to suggest that if a person suddenly falls behind such type of injury could be caused. Witness qualifies that only if the fall is from a height such injury could be caused. 7. It is not true to suggest that if a person suddenly falls behind such type of injury could be caused. Witness qualifies that only if the fall is from a height such injury could be caused. 7. Most probably if a person is dropped from a height, there should be external injuries like abrasions, haematoma or cuts. If a person is assaulted with a weapon like M.O.1, the external injury may or may not occur. (witness adds that if the blow was landed or a cloth or any such object, the external traces of injury may not be visible.) 15. Therefore, the evidence of PW-14 would also corroborate the finding that in all probabilities, the injury must have been caused by an object like M.O.1. Therefore, possibility of the injured sustaining injury as suggested by the defence in the cross-examination of both these doctors is totally cannot be believed or accepted. Though PW-3 has not supported the case of the prosecution, he has categorically stated in his evidence about the incident that “he was sleeping on the katta infront of his house. He heard shouts but did not get up. After his wife woke him up and asked to go and enquire as to what was the galata, he went near Devappa's house and saw Devappa had fallen down infront of his house. He was beaten.” Therefore this evidence clearly proves that the deceased had sustained injury on being assaulted and there was no possibility of falling from katta either incidental or under intoxication. He also found that the injures was unconscious. He has also stated that there were street lights. Therefore, he having not supported with the manual assault by M.O.1 itself would not be a ground to discard the evidence to the extent stated above. The Principle of resjesstate is applicable to the evidence of such witnesses. In such cases, it is well settled principle of law that all evidence has to be appreciated by applying the theory of separating the grain from the chaff. Though he denied that he has given statement before the police as petitioner Ex.P-3, having regard to the evidence deposed by him in his examination-in-chief and the contents of Ex.P3, would probablise the fact that the injured must have sustained injury on account of the assault by the accused. 16. PW-4 has also not supported the case of the prosecution. 17. 16. PW-4 has also not supported the case of the prosecution. 17. PW-6 is the wife of the deceased who came on the next day after receiving information about an assault on her husband by the accused. When she visited the hospital, by that time, the deceased was shifted to Hubli hospital where he survived for eight days. She has further stated that her husband was not in a position to talk. She has deposed that on the previous day of her husband's death, he had told her that on the date of the incident at about 11.00 pm, the accused quarreled with him and assaulted him with the handle of axe. Further, she has deposed that there was a land dispute between her husband and the accused over the boundary dispute of the land. Nothing is elicited in his cross-examination to show that neither the deceased nor the lady had any reason to implicate the accused falsely. When the injured was admitted to the hospital at Hubli. On the next day, the Police has came and recorded her statement. The Police has also enquired her husband in the hospital at that time she was sitting outside. Therefore, this evidence also corroborates the case of the prosecution that the injured had sustained injury on account of assault by the accused. 18. PW-7 is said to be the younger brother of the deceased. At about 12.00 or 12.30 midnight, PW-7 was informed by one Fakkirappa Kuri, a neighbour of the deceased, about the quarrel between the deceased and the accused. In that quarrel, the accused lifted the deceased and threw him on the granite slab and thereafter assaulted him with the handle of the axe. As a result, the deceased was unable to move. He has further stated that as they were engaged in saving the life of the deceased, they did not file a complaint immediately. He had deposed that since there were no vehicles, they could not immediately shift the injured to the hospital. Since the deceased himself gave complaint before the police while he was in the hospital, the question of this person lodging complaint does not arise more over PW-7 along with others were giving much attention to administer medical treatment to the deceased. Therefore, there are no reasons to disbelieve the evidence of these witnesses which corroborates the case of the prosecution. 19. Therefore, there are no reasons to disbelieve the evidence of these witnesses which corroborates the case of the prosecution. 19. PW-8 has deposed that since they could not arrange for vehicle and that incident had occurred in the midnight, therefore, they have taken the injured to the hospital on the next day. This witness and others have seen the injured lying near the Katta infront of the house. Though the injured was in position to speak, he could not move his limbs. He was not able to get up. Immediately, they shifted the injured to German Hospital, Gadag Betageri. He has further deposed that the police have not recorded his statement. Police came to the hospital on the next day at about 12.00 noon. Therefore, no malafides could be attributed to the witnesses. PW-9 has not supported the case of the prosecution. 20. PW-10 is not an eyewitness to the incident and has not supported the case of the prosecution. Nothing much is elicited in his crossexamination. 21. PW-16 is the investigating officer who had come to the hospital after receiving information and recorded the statement of the deceased as per Ex.P-14. Based on that complaint a case in P.S. Crime No.42 of 2007 under Section 324 and 506 IPC was registered against the accused and forwarded the FIR to the Court which is at Ex.P-15. He has recorded the statement of the witnesses. He conducted spot mahazar and seized the material objects. After the death of the injured, an offence punishable under Section 302 of IPC was incorporated against the accused. He has recorded the statement of the injured after obtaining doctor's permission with a written endorsement. He admitted that Medical Officer has not endorsed on Ex.P-14. These facts would not leave any doubt or any intention on the part of the Investigating Officer to implicate the accused falsely. Requisition given by the Doctor is marked at Ex.P-18. 22. PW-18 is the Neurosurgeon doctor. He has categorically stated that on 30.04.2007 one Devappa Mal lappa Ramannavar was referred from Basel Mission, CSI Hospital, Gadag-Betageri. He was brought to the hospital with a history of assault on the neck with loss of power in both the hands and both legs. Requisition given by the Doctor is marked at Ex.P-18. 22. PW-18 is the Neurosurgeon doctor. He has categorically stated that on 30.04.2007 one Devappa Mal lappa Ramannavar was referred from Basel Mission, CSI Hospital, Gadag-Betageri. He was brought to the hospital with a history of assault on the neck with loss of power in both the hands and both legs. He has further deposed that he examined the patient on 30.04.2007 and on examination he found severe cervical cord injury, cord contusion with quadraplegia and contusion on the posterior aspect of neck with pain and swelling. He issued wound certificate which is marked as Ex.P-21. It is elicited in his crossexamination that the patient was conscious at the time of the admission. He has spoken about the inpatient case sheet as per Ex.P-20 and wound certificate at Ex.P-21. He has further opined that injury on the neck of the deceased could be caused with an object like M.O.1. The doctor has admitted in his cross-examination that the injured died of neck/cord injury. 23. Therefore, on evaluating the entire evidence on record, I find that the injured had sustained cervical cord injury which ultimately resulted in his death. Therefore, the trial Court has rightly accepted the statement made by the victim to the police as per Ex.P-14. The statement of the deceased is also corroborated by the evidence of wife of the deceased and the brother of the deceased. The evidence on record proves that the deceased sustained spinal cord injury in an assault. The statement made by the injured before the wife also amounts to an oral dying declaration. The delay in filing the FIR has been rightly explained by relying on the decision of the Hon'ble Supreme Court in the case of Padmanaban v. State by Inspector of Police, Tamil Nadu, (2009) 3 Crimes(SC) 333. There is no reason to disbelieve the evidence of the Investigating Officer who recorded the statement of the deceased. In the case of Ramawati Devi Vs. State of Bihar reported in AIR 1983 Supreme Court 164, the Hon'ble Supreme Court held as under: There is no requirement of law that dying declaration must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. State of Bihar reported in AIR 1983 Supreme Court 164, the Hon'ble Supreme Court held as under: There is no requirement of law that dying declaration must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. AIR 1971 SC 953 and AIR 1976 SC 1994 , disting. In the instant case, dying declaration was recorded by an Asstt. Inspector of Police. In his cross-examination no questions were put to him as to the state of health of the deceased and no suggestion was made that the deceased was not in a fit state of health to make any such statement. The Doctor's evidence also clearly indicated that it was possible for the deceased to make the statement attributed to her in the dying declaration in which her thumb impression had also been affixed. The statement found corroboration in the testimony of other witnesses. None of the witnesses including the Police Officer could be attributed with any kind of ill-feeling against the accused. Held that the dying declaration was admissible and could be relied upon for purpose of convicting the accused. The trial Court has meticulously analyzed the evidence on record and right appreciated the position of law laid down and has come to a right conclusion in convicting the accused based on the evidence on record and found the accused guilty of the offence of committing homicidal not amounting to murder. Therefore, no grounds to interfere with the order passed by the trial Court which is just and proper based on the evidence on record. Hence, point No.1 is answered in the affirmative and point No.2 in the negative. Accordingly, I pass the following order: The appeal is dismissed. The judgment of conviction and sentence passed by the Principal District and Sessions Judge, Dharwad, in Sessions Case No.82 of 2008 is confirmed. Send back the records with a copy of this order to the Court below for taking further action in the matter. Bail bond of the accused stands cancelled. The period of detention, if any, undergone by the accused during trial is set off. Send back the records with a copy of this order to the Court below for taking further action in the matter. Bail bond of the accused stands cancelled. The period of detention, if any, undergone by the accused during trial is set off. The accused is directed to appear before the trial court and the trial Court shall commit him to custody to undergo the rest of the period of detention as imposed by the trial Court in the impugned judgment.