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2020 DIGILAW 1310 (KAR)

Timmappa v. State Of Karnataka

2020-07-02

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - The present appeal has been preferred by the appellant-accused No.1 challenging the legality and correctness of the judgment passed in S.C. No. 58/2014 dated 20.04.2017 by the learned First Additional District & Sessions Judge, Bagalkot sitting at Jamakhandi. 2. We have heard Sri K.L. Patil, learned counsel appearing for the appellant-accused and Sri V.M. Banakar, learned Addl. S.P.P. for the respondent-State. 3. The genesis of the case of the prosecution in brief is that the elder daughter of complainant was given in marriage to the appellant-accused about 12 years back. Out of the said wedlock she gave birth to 4 children and later she has undergone tubectomy operation and was staying in the parental house. It is alleged that, earlier for some days both husband and wife lived happily and thereafter the appellant-accused No.1 and the mother of accused No.1 started illtreating and harassing her both physically and mentally. Both were advised not to do so. But they did not heed to the request. 15 days prior to the alleged incident, the accused came to the house of the complainant and stayed there. When he was staying there he used to abuse the deceased and also used to torture her. On 06.02.2014 at about 6.30 p.m. the complainant, his wife, children and others had been to the house of their relative for attending birthday party. The accused, deceased and their daughter Vidya were there in the house. At about 7.30 p.m. PW7 Nagesh made a phone call and informed that husband of his sister, i.e., Thimmappa had assaulted his sister on her head and she has sustained bleeding injuries. Immediately she was shifted to Bhadrannavar hospital and she was not in a condition to speak. On enquiry by the complainant to his son PW7, he told that after completion of the birthday party they were coming near the house, at that time daughter of his sister-Vidya came out of the house, weeping. In the meantime, husband of his sister came out of the house and when the complainant questioned him, he told that nothing has happened and saying so he ran away. Later he entered the house and found his sister Madevi lying in the pool of blood. Immediately she was taken to the hospital but the Doctor advised to take her to the hospital at Jamakhandi. Later he entered the house and found his sister Madevi lying in the pool of blood. Immediately she was taken to the hospital but the Doctor advised to take her to the hospital at Jamakhandi. As per the advise, she was taken to Jamakhandi in an ambulance. At about 9.45 she died in the Government Hospital, Jamakhandi. Subsequently, a complaint was registered by the father of the deceased. On the basis of the complaint a case was registered by the Pol ice in Crime No. 23/2014 and took the case for investigation. After the investigation charge sheet came to be fi led. 4. Learned Civil Judge & JMFC, Banahatti committed the case to the Sessions Court. The learned Sessions Judge after hearing the learned Public Prosecutor and the learned counsel for the accused framed the charge and read over and explained to the accused. The accused pleaded not guilty and claims to be tried. As such, trial was fixed. To prove the case of the prosecution, the prosecution got examined 21 witnesses and got marked 37 documents and also 10 material objects. Thereafter statement of the accused was recorded u/s 313 of Cr.P.C. by putting incriminating material as against him. He has denied the same. The accused has not led any evidence nor got marked any documents. After hearing the arguments, learned trial Judge acquitted accused No.2 for al l the charges leveled against her and convicted the accused No.1 for the offences punishable u/s 498A and 302 of IPC. Challenging the same, the appellant is before this Court. 5. The main grounds urged by the learned counsel for the appellant-accused No.1 are that, the judgment of conviction and order of sentence passed by the trial Court is contrary to the facts and materials placed on record. Further, there are so many contradictions in the complaint-Ex.P.1 and the evidence produced by the prosecution, the same has not been considered by the trial Court. It is alleged that, PW6, the sister of the deceased is said to have seen the alleged incident for the first time through the window. But the sketch-Ex.P.19 drawn by PW14 does not disclose the fact that she is able to see the incident through the window. As per the sketch there are two rooms and the alleged incident has taken place in the 2nd room where no window was existing. But the sketch-Ex.P.19 drawn by PW14 does not disclose the fact that she is able to see the incident through the window. As per the sketch there are two rooms and the alleged incident has taken place in the 2nd room where no window was existing. In between the two rooms there is a wall. Under such circumstances, it is highly impossible to see the alleged incident. Moreover the window which was in the front wall is at a higher level and a container has also been built with sheets. Therefore she is not able to stand and witness the incident through the window. Even the evidence of this witness is contrary to the evidence of PW7, the daughter of the deceased and contrary to Ex.D.1. On these grounds, it is submitted that presence of PW6 itself creates a doubt, much less she seeing the alleged incident. The version of PW7 is contrary to the contents of the complaint-Ex.P.1. He has given a go by to the contents of the complaint even though the complaint is said to have been filed, by PW1 on the basis of the information provided by PW7. This evidence has not been properly appreciated by the trial Court. 6. He further submitted that MO9- grinding stone is said to have been recovered at the instance of the accused from the house. But the evidence of PW6 clearly goes to show that immediately after the funeral, on the next day they have cleaned the house. Under such circumstances how the said grinding stone was not traced, that too which was stained with blood, has not been properly explained. In that light, even recovery of MO9 at the instance of the accused has also not been substantiated by the prosecution. 7. He further submitted that the ocular evidence and the evidence of the Doctor is contrary to the case made out by the prosecution. Though there is no material to connect the accused to the alleged crime, he has been convicted. It is alleged that an agreement of sale had taken place and advance amount was received. In that the deceased used to ask a share and there was a conflict in the family and the deceased and the possibility of the witnesses themselves causing death of the deceased also cannot be over-ruled. It is alleged that an agreement of sale had taken place and advance amount was received. In that the deceased used to ask a share and there was a conflict in the family and the deceased and the possibility of the witnesses themselves causing death of the deceased also cannot be over-ruled. This aspect had not been properly appreciated by the trial Court in its right perspective. On these grounds he prayed to al low the appeal and to set aside the judgment of conviction and order of sentence and to acquit the accused. 8. Per contra the learned counsel for the respondent vehemently argued and submitted that the evidence of PW6 and 7, if it is perused, it indicates that accused was present in the house of the deceased and even the evidence goes to show that the members of the family had gone to attend the birthday party of their relative and when they came back, they noticed that the accused came out of the house and when they enquired the accused, he simply said nothing had happened, and ran away and when they went inside the house, they found the body of the deceased which was lying in the pool of blood. 9. He further submitted that PW6 is the eye witness to the alleged incident and she has seen the accused abusing the deceased and calling her for the sexual favour. When she refused, at that time, accused has assaulted the deceased with the grinding stone and the same has been recovered at the instant of the accused, by drawing a mahazar. It is his further submission that the evidence produced clearly goes to show that accused used to ill-treat and harass and even many a times, used to assault the deceased and even the elders of the family have advised him. If al l these materials are taken into consideration, then it clearly goes to show that it is the accused, who has committed the murder and has ill-treated and harassed. Under such circumstances, the trial Court has rightly appreciated evidence and by accepting the same has rightly convicted the accused. There are no good grounds to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed. On these grounds, he prayed to dismiss the appeal. 10. Under such circumstances, the trial Court has rightly appreciated evidence and by accepting the same has rightly convicted the accused. There are no good grounds to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed. On these grounds, he prayed to dismiss the appeal. 10. We have carefully and cautiously gone through the submissions of the learned counsels appearing for the parties and perused the records, including the trial Court records. 11. The prosecution in order to prove the case got examined 21 witnesses. PW1 is none other than the father of the deceased. On the basis of the information given by his son-Nagappa-PW7, he has filed the complaint as per Ex.P1, but he has not supported the case of the prosecution and he has been treated as hostile. PW2 and 8 are the inquest mahazar panchas and they have deposed with regard to the drawing of inquest mahazar as per Ex.P5 and PW8 is also a witness to the spot mahazar Ex.P7, whereunder M.O.1 and 2 were seized and Ex.P8 seizer mahazar, whereunder M.O.3 to 8 have been seized. PW3 is a spot mahazar pancha to Ex.P7 whereunder MOs.1 and 2 have been seized. Ex.P8 is mahazar panchanama in which MOs.3 to 8 have been seized and he is also a pancha to recovery mahazar whereunder the clothes of the deceased have been seized as per MOs.3 to 8. PW4 is the seizure mahazar pancha to Ex.P10, whereunder MO-9-the stone has been recovered. MO-10-shirt has been recovered under Ex.P4. PW5 is also pancha witness to the same mahazar. PW3 to 5 have not supported the case of the prosecution and that they have been treated as hostile. 12. Pw9 is the mother of the deceased. She has spoken with regard to the ill-treatment and harassment said to have been caused by the accused and she speaks with regard to the motive. PW10 is the relative of PW1, he speaks about the motive and harassment said to have been caused by the accused. PW11 is the scribe of Ex.P1 insofar as writing of Ex.P1, he has supported the case of the prosecution. But he has not supported the case of the prosecution in respect of the illtreatment and harassment given by the accused to the deceased. 13. PW11 is the scribe of Ex.P1 insofar as writing of Ex.P1, he has supported the case of the prosecution. But he has not supported the case of the prosecution in respect of the illtreatment and harassment given by the accused to the deceased. 13. Pw12 is the doctor who has conducted the autopsy over the body of the deceased and has issued the post mortem report as per Ex.P17. PW13 is the doctor who has conducted the tubectomy operation of the deceased prior to the alleged incident. PW14 is the PWD engineer, who has drawn the sketch as per Ex.P19. PW15 is the Junior Engineer of HESCOM, who has issued the certificate as per Ex.P20, which indicates that on the date of the alleged incident, there was uninterrupted electricity supply. PW16 to 18 are the elderly persons of the village, they spoke with regard to the motive and advise made by them, but they have not supported the case of the prosecution and have been treated as hostile. PW19- police constable, who carried the FIR-Ex.P27 and submitted to the Jurisdictional Court. PW20 is the police inspector who received the complaint as per Ex.P1 and registered the case. PW21 is the investigating officer who investigated the case and filed the charge sheet. 14. It is the contention of the learned counsel for the appellant/accused that though there is no sufficient evidence to come to the conclusion that it is the accused who has committed the alleged offence, the prosecution in order to establish the fact that it is the accused who has committed the alleged offence has relied upon the evidence of PW6-Yallakka, who is none other than the sister of the deceased. In her evidence she has deposed that as there was ill-treatment and harassment in her husband's house, she came and was staying with her parents. It is her further evidence that in the month of January 2014, she has undergone tubectomy operation and she was also informing over phone, to her mother that the accused is giving ill-treatment and harassment and she is not being treated properly. It is further deposed that because of such ill-treatment, the mother and her brother went and brought her to their house. It is further deposed that because of such ill-treatment, the mother and her brother went and brought her to their house. She further deposed that on 06.02.2014, there was a birthday party in the house of one of the relatives at about 6.30 pm and all of them went and at that time, the deceased, her husband and two children were their in the house. She has further deposed that she came back to take the daughter of the deceased-Vidya at about 7.15 pm to the house and at that time, the house was latched and she tapped the door 2 to 3 times. But the door had not been opened and at that time she heard the accused calling the deceased to come and sleep and when the deceased refused, the accused slapped her 2 to 3 times. Witness stated that she had seen this incident through the window and she had also requested the accused not to assault. In the mean time, the accused by taking some object has assaulted on her head and as a result of the same, the deceased fell down. Witness stated that she raised hue and cry and at that time her brother came and after 5 minutes, the accused opened the latch of the door and when they enquired him as to what has happened, he simply said as 'nothing has happened' and stepped down the steps and ran away. Immediately she and her brother went inside and saw her sister lying in the pool of blood. Immediately she has been taken to the hospital where she was declared dead. 15. She has also further deposed that after one week of the incident, police brought accused at about 9.30 am and accused by taking a grinding stone from the basket, which was kept in the corner, and informed that with the same grinding stone he had assaulted the deceased. The said stone was stained with blood. 16. During the course of cross examination, witness has deposed that the alleged incident has taken place in zinc sheet shed and she does not know with which article the accused assaulted the deceased. She came to know about the said fact only when police came after a week after the incident. She has further deposed that she told the Police that she has not seen the incident. She came to know about the said fact only when police came after a week after the incident. She has further deposed that she told the Police that she has not seen the incident. She has further deposed that on the next day after the cremation, they had cleaned the entire house. The other suggestions have been denied. Except that, nothing has been brought on record during the course of cross examination. 17. Pw7 is the brother of the deceased. He has deposed with regard to the ill-treatment and harassment. He has further deposed that on the day of the incident when he came at about 7.00 pm after hearing hue and cry, and found PW6 there. On examining she told that the accused has assaulted the deceased, inspite of her telling to leave her. After about 5 minutes, the accused came out of the house by opening the door and when he enquired him as to what had happened, he said nothing had happened and ran away from the place. When he went inside the house, he saw the deceased lying in pool of blood. During the course of cross examination, both the witnesses have denied all the suggestions. 18. On close reading of the evidence of PW7 coupled with Ex.P1-the complaint, it reveals that, Ex.P1-the complaint has been filed by the father of the deceased, wherein he has clearly stated that when he made an enquiry with PW7, he told that they had been to attend the birthday party and by the time he went near the house, his sister's daughter Vidya was standing outside the house, weeping and when he was going inside the house, at that time, the husband of his sister, i.e., accused, came out and when he asked what had happened, he told nothing has happened and ran away from that place. But in his deposition he has deposed contrary to the statement made in the complaint Ex.P1., which was filed on the basis of the say of this witness. Then under such circumstances, his evidence is contrary to the facts stated in Ex.P1. Under such circumstances, the evidence of this witness is not trustworthy and reliable, that too, when criminal law is put into motion on the basis of the complaint Ex.P1. 19. Then under such circumstances, his evidence is contrary to the facts stated in Ex.P1. Under such circumstances, the evidence of this witness is not trustworthy and reliable, that too, when criminal law is put into motion on the basis of the complaint Ex.P1. 19. Be that as it may, on perusal of the evidence of PW6, the prosecution has examined this witness as an eyewitness. She has deposed that she has seen the accused assaulting the deceased, slapping and abusing. But as could be seen from the sketch at Ex.P19, drawn by PW14, it indicates that the witness admitted that he has not mentioned regarding the height of the windows from the ground level and even Ex.D1, indicates that there is no place for standing in front of the window as there is a container built with sheet. Under such circumstances, this witness standing near the window and peeping through the window, witnessing the incident itself appears to be suspicious. 20. Be that as it may, on perusal of Ex.P19, it indicates that the said house is having two doors and a window in one portion and in between there is a wall; the alleged incident has taken place on the other side of the middle wall. Under such circumstances, the contention of this witness that she has seen the alleged incident of accused assaulting the deceased itself is contrary to the documents, which has been produced by the prosecution. 21. Be that as it may, even the evidence of PW6 and PW7 are contrary to each other. PW6 in her evidence has deposed that when she came to take the daughter of the deceased, Vidya, the door of the house was latched; the accused was assaulting and his sister who was making hue and cry, the witness was requesting the accused not to assault. But the complaint-Ex.P1 indicates that when PW7 came near the house at that time, daughter of the deceased, Vidya was standing outside and was weeping. When he examined her as to what has happened, at that time the accused came out of the house and when he enquired him as to what had happened, he said nothing and ran away from that place. There are so many contradictions in the contents of the complaint and evidence produced before the court. When he examined her as to what has happened, at that time the accused came out of the house and when he enquired him as to what had happened, he said nothing and ran away from that place. There are so many contradictions in the contents of the complaint and evidence produced before the court. The evidence of PW6 and 7 also do not corroborate the incident as alleged by the prosecution. Taking into consideration the said evidence we are of the considered opinion that PW6 appears to be a planted witness, only to make out a case for the prosecution as an eyewitness. If really she was an eyewitness to the alleged incident, definitely the things could have been stated in a different manner. At one stage she stated that she saw the accused assaulting but as per the sketch which has been produced as per Ex.P19, it indicates that nothing was visible, as in between there is a wall. Under such circumstances even if she was present she will not be a eye witness to the incident as alleged by the prosecution. 22. Be that as it may, even the prosecution has tried to build up a story that MO-9 the grinding stone has been recovered at the instance of the accused by drawing a mahazar as per Ex.P10 and 11. During the course of cross examination the witness deposed that, next day after the cremation, the entire house was cleaned and after six days of the incident, the accused was brought to the house and he is said to have been taken out the grinding stone-MO-9 and produced before the investigating officer, which was came to be seized. But nothing has been stated with reference to the fact as to how the same has not been seen by anybody, when the entire house was cleaned immediately after the cremation. In that light also, the doubt arises in the case of the prosecution in so far as recovery is concerned. In order to prove recovery, prosecution must first establish the fact that the said fact must be exclusively within the knowledge of accused and it should be concealed. If it is available of excess to all those who are residing there, then, under such circumstances it is no recovery. In that light this circumstances will not help the case of prosecution. The same is rejected. 23. If it is available of excess to all those who are residing there, then, under such circumstances it is no recovery. In that light this circumstances will not help the case of prosecution. The same is rejected. 23. It is well settled preposition of law that if there is an element of doubt, then the benefit of such doubt should go to the accused. Even the presence of the accused itself is going to be doubtful. If really the accused was present at the time of the alleged incident and if he is the culprit, under such circumstances, the persons who have gathered there, could have caught hold of him and they could not have left him free. The witnesses, who have been examined before the Court, have not supported the case of the prosecution with reference to the ill-treatment and harassment and they have been treated as hostile. The only evidence which has been led by the prosecution is that of the interested testimony of related witnesses. Their evidence is not trustworthy and reliable, as discussed above. Under such circumstances, the said evidence is not going to come to the aid the prosecution in any manner. 24. During the course of cross examination, an attempt was made to make out the case that the property has been sold, consideration amount has been received and the deceased was ascertaining her share in it and in that light, the alleged incident had taken place. The said contention appears to be having some force. 25. On perusal of the evidence of the doctor-PW-12, in his evidence he has deposed that he has conducted autopsy over the body of the deceased and had issued postmortem report as per Ex.P17. During the course of cross examination he has deposed that injury Nos.1 to 4 are independent injures and injury Nos.1 and 3 have been caused with sharp edged weapon and the said injuries are likely to be caused if assault has been committed with heavy sharp edged weapon and injury No.2 can be caused with sharp edged weapon and pol ice have not sent any sharp weapon like axe. He has also further deposed that 4th and 5th injuries are simple in nature. He has further deposed that there is no possibility of causing injury Nos.1 to 4 if assaulted with MO.9-the grandy stone. He has also further deposed that 4th and 5th injuries are simple in nature. He has further deposed that there is no possibility of causing injury Nos.1 to 4 if assaulted with MO.9-the grandy stone. But however in Ex.P37, the contrary opinion has been given stating that the injuries mentioned in postmortem can be caused with the weapon like MO.9. Taking into consideration of the medical evidence and ocular evidence, it is contrary to the evidence which has been produced by the prosecution and the oral evidence. We are conscious of the fact that ocular evidence prevails over the medical evidence when it is not trust worthy and reliable and there are contradictions in the oral evidence and in the medical evidence. If oral evidence is destroyed by medical evidence it can be relied on. If the said injuries are not possible with M.O.9- grinding stone, then with which weapon, who assaulted remains as a question. Under such circumstances, it creates doubt in the case of the prosecution, the benefit of doubt goes to the accused. 26. The material witness Vidya who is said to have been present in the house at that time of alleged incident, has not been examined either by the Investigation Officer or by prosecution before the Court for the reasons best known to the prosecution. It creates serious doubt in the case of the prosecution withholding or suppressing material witness is considered to be serious lacuna in the case. It also creates doubt. Looking from any angle, the evidence which has been produced does not depict the fact that it is the accused who has committed the alleged offence. We have carefully and cautiously gone though the judgment of the Trial Court. The trial Court without looking into the evidence and material placed on record has come to a wrong conclusion and has wrongly convicted the accused. So in that light, the said judgment requires interference at the hands of this Court. For the discussion held by us above and the circumstance narrated, we pass the following order: ORDER The appeal is allowed. The judgment of conviction and order of sentence dated 20.04.2017 passed by the learned I Additional District & Sessions Judge, Bagalkot to sit at Jamakhandi in S.C.No.58/2014 is hereby set aside. Consequently, the appellant-accused No.1 is acquitted of all the charges level led against him. The judgment of conviction and order of sentence dated 20.04.2017 passed by the learned I Additional District & Sessions Judge, Bagalkot to sit at Jamakhandi in S.C.No.58/2014 is hereby set aside. Consequently, the appellant-accused No.1 is acquitted of all the charges level led against him. He is set free forthwith if he is not required in any other case. Registry is directed to communicate the operative portion of the judgment to the concerned jai l authorities and the learned Principal District & Sessions Judge, Bagalkot through e-mail so as to release the appellantaccused No.1, i.e., Mr.Timmappa S/o Yankappa Gollar, forthwith, if he is not required in any other case. Registry is directed to send back the trial Court records forthwith.