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2020 DIGILAW 1495 (KAR)

Revansiddappa v. State Of Karnataka

2020-07-24

P.KRISHNA BHAT, R.DEVDAS

body2020
JUDGMENT R. Devdas, J. - The appellant who is the sole accused, being convicted for offences punishable under sections 504, 506 and 302 of IPC by the Sessions Court in S.C.No.163/2010, has preferred this criminal appeal assailing the order of conviction. 2. The appellant and the deceased Chandrashekhar are two of the sons of Shri Basappa, the other eldest son being Shivappa (PW.5). The case of the prosecution is that on 21.04.2010 when PW.1, Shantabai, wife of the deceased came to the public tap to fetch water, a quarrel took place between the appellant and Shantabai. On hearing the appellant using filthy language and abusing Shantabai, her husband Chandrashekhar came out of the house and intervened, requesting the appellant not to use filthy language or abuse his wife. Feeling enraged, the appellant went into his house, came back with a wooden stick and hit Chandrashekhar on his head. Chandrashekhar collapsed having lost consciousness. He was shifted to BLD Hospital at Bijapur, where later he succumbed to the injury. A written complaint was given by Shantabai (PW.1). The information was received by Kalakeri Police at 4.30 p.m. and dispatched to the Court at 6.30 p.m. an endorsement is made by the Magistrate of having received the FIR at 12.30 a.m., the intervening night. 3. According to the prosecution, the motive for the appellant to commit the heinous crime is property dispute. As per the complaint of PW.1 and her testimony, a partition of all the properties belonging to the family was made and executed by the father Basappa about five years prior to the incident. However, though the maximum portion of landed property was allotted to the share of the appellant, he was not happy for the reason that his portions of the land were less fertile. Therefore, the appellant was always insisting that he should be given more and in this regard he used to frequently quarrel with his brother, deceased Chandrashekhar. In the complaint, it is stated that at the time of the incident, which occurred at about 7.00 in the morning, the eldest brother Shivappa (PW.5) was present at the spot, along with two other persons namely, Kanteppa Jalpur (PW.7) and Parashuram Chincholi (PW.8), who tried to stop the quarrel and snatched the wooden stick from the hands of appellant. Thereafter, Shantabai, with the help of her father-in-law Basappa and two other persons shifted Chandrashekhar to the hospital. Thereafter, Shantabai, with the help of her father-in-law Basappa and two other persons shifted Chandrashekhar to the hospital. Jatteppa S/o Sayabanna Pujari is the scribe who wrote the complaint at the instance of Shantabai and he is examined as PW.9. PWs.2 and 3 are panch witnesses for the spot mahazar Ex.P.2, while PW.4 is the panch witness for the inquest mahazar Ex.P.3. The father of the appellant and deceased, Shri Basappa is examined as PW.6. 4. Pw.1, the wife of the deceased, at the first instance, during her examination-in-chief stated that her husband Chandrashekhar fell down from the staircase and died. At that point of time, the matter was adjourned and on the next occasion when PW.1 was once again examined, she repeats the same version that her husband died due to the fall from the staircase. The prosecution treated the witness as hostile and sought permission for cross-examination of PW.1. However, during cross-examination PW.1 reiterated the version that she gave in the complaint. It is noticed in the impugned judgment that during cross-examination, PW.1 cried in the witness box and narrated the real incident. The other eyewitnesses, viz., PW.5, eldest brother of the deceased, PW.7 and PW.8, did not support the prosecution. In fact, PWs.7 and 8 have said that the deceased Chandrashekhar fell down, hurt himself and consequently died. PW.6, the father of the appellant as well as the deceased also did not support the prosecution. He has stated that there was no dispute regarding partition between the appellant and the deceased. PW.9, the scribe who wrote the complaint at the instance of PW.1, stated that he does not know how the deceased died and that there was no dispute between the brothers regarding partition. 5. The trial Court holds that a safe presumption can be drawn that after the partition between the three brothers, the accused was not happy with the land allotted to him. He was intending to grab two more acres from the deceased and the motive behind eliminating the deceased by the accused is very clear. Further, based on the medical evidence, the trial Court comes to the conclusion that the deceased died due to the injury caused by the wooden stick MO.1. He was intending to grab two more acres from the deceased and the motive behind eliminating the deceased by the accused is very clear. Further, based on the medical evidence, the trial Court comes to the conclusion that the deceased died due to the injury caused by the wooden stick MO.1. The trial Court proceeds to hold that the prosecution has cogently proved beyond all reasonable doubts that the accused being the full brother of the deceased, not satisfied with the partition, was waiting for an opportunity to take revenge against the deceased and accordingly, he hatched a plan soon after the quarrel with the complainant, he has determined to finish the deceased and accordingly he has committed the murder of the deceased. Having found the appellant guilty of offences punishable under sections 504, 506 and 302 of IPC, the trial Court sentenced the appellant to undergo life imprisonment and also pay a fine of Rs.10,000/-. 6. Learned counsel for the appellant submits that the trial Court has erred in drawing a conclusion that the motive for the appellant to perpetrate the heinous crime is the dissatisfaction in the allotment of shares during the family partition. The learned counsel has drawn the attention of this Court to the testimony of PW.1 and PW.6, in this regard. The learned counsel submits that both the witnesses have admitted that the partition took place five years prior to the incident. PW.6, being the father of the appellant and deceased is on record stating that there was absolutely no dispute with regard to the partition. 7. The learned counsel for the appellant submits that it is by now well settled that where there is sole eyewitness and the said witness is a close relative of the deceased, courts should be slow in accepting the testimony of such witnesses. The learned counsel submits that when the sole eyewitness, PW.1 gave different versions of the incident, the trial Court should not have accepted the testimony of such wavering witness. In this regard, the learned counsel relies on the following decisions. 1. Lavghanbhai Devjibhai Vasava vs. the State of Gujarat, (2018) 3 Crimes(SC) 119 2. Jagdish and others vs. the State of Haryana, (2019) AIR SC 3696 and 3. Unreported decision of Division Bench, High Court of Karnataka, Kalaburagi Bench in Criminal Appeal No.3600/2012, Ramesh vs. State of Karnataka, decided on 15.07.2019. 1. Lavghanbhai Devjibhai Vasava vs. the State of Gujarat, (2018) 3 Crimes(SC) 119 2. Jagdish and others vs. the State of Haryana, (2019) AIR SC 3696 and 3. Unreported decision of Division Bench, High Court of Karnataka, Kalaburagi Bench in Criminal Appeal No.3600/2012, Ramesh vs. State of Karnataka, decided on 15.07.2019. The last of the decision relied upon by the learned counsel is for the proposition that even if this Court were to rely upon the medical evidence and record a conviction, however, this Court should consider that the unfortunate incident occurred due to a spur of the moment quarrel and the case would fall under the fourth exception to Section 300 of IPC, and the offence may fall under Section 304 Part II of IPC and not under Section 302 of IPC. 8. The learned Additional State Public Prosecutor submits that the trial Court was justified in drawing the conclusion that there was sufficient motive behind the incident and though PW.1 gave different versions, ultimately the trial Court had the benefit of examining the demeanor of the witness and found that she wept in the witness box and thereafter revealed the true facts. The learned Additional State Public Prosecutor submits that the medical evidence would clearly establish that the death of the deceased was due to the grievous injuries caused by the wooden stick and there was nothing on record to suggest that the said injury could have been caused when the deceased fell down from the staircase. However, on the question as to whether the unfortunate incident would fall under the fourth exception to Section 300 and 304 of IPC, the learned Additional State Public Prosecutor does not vehemently contest the submissions made by the learned counsel for the appellant. On his part, the learned Additional State Public Prosecutor, while relying upon a decision of the Apex Court in the case of Attar Singh vs. State of Maharashtra, (2013) 11 SCC 719 would submit that if the evidence of a hostile witness is corroborated by the other evidence, there is no legal bar to convict the accused. The learned Additional State Public Prosecutor has also cited the decision in the case of Kamlakant Dubey vs.State of Utter Pradesh and Others, (2015) 11 SCC 145 . 9. We have heard the learned counsel for the appellant, Additional State Public Prosecutor and perused the trial Court records in detail. The learned Additional State Public Prosecutor has also cited the decision in the case of Kamlakant Dubey vs.State of Utter Pradesh and Others, (2015) 11 SCC 145 . 9. We have heard the learned counsel for the appellant, Additional State Public Prosecutor and perused the trial Court records in detail. The law is fairly well settled that conviction can be based on a testimony of a single eyewitness, if he or she passes the test of reliability and that it is not the number of witnesses but the quality of evidence that is important, with the apparent emphasis that evidence must be weighed and not counted, decisive test being whether it has a ring of truth and it is cogent, credible, trustworthy or otherwise. A word of caution is also sounded in cases where the solitary eyewitness is related to the deceased. Here is a case where the solitary eyewitness PW.1 is the wife of the deceased and sister-in-law of the sole accused. When the testimony of PW.1 is tested on the touchstone of credibility, trustworthiness and steadfastness, it is found wavering and not cogent. When PW.1 entered the witness box, she gave a different version resiling from the version given in the complaint, retracting from the allegation made against the accused. At that juncture, at the instance of prosecution, the Court seems to have adjourned the matter. Later, when PW.1 was again examined, she repeated the second version, stating that her husband died due to the fall from the staircase. However, after PW.1 was treated as hostile, when the prosecution cross-examined her, she seems to have cried in the witness box and reiterated the version given in the complaint, alleging that the accused gave one blow with a wooden stick on the head of the deceased. The trial Court seems to have been carried away by the fact that PW.1 cried in the witness box and thereafter answered to the queries put by the prosecution, supporting the case of the prosecution. In our opinion, the fact that the solitary eyewitness, PW.1 gave different versions is sufficient to hold that her testimony is not cogent, credible or trustworthy. 10. In our opinion, the fact that the solitary eyewitness, PW.1 gave different versions is sufficient to hold that her testimony is not cogent, credible or trustworthy. 10. The decision cited by the learned Additional State Public Prosecutor in the case of Kamalakant Dubey holds that conviction can well be founded on the testimony of a single eyewitness if the Court finds his or her version to be trustworthy and corroborated by evidence on material particulars. Here, having found that the testimony of PW.1 is wavering and not cogent, we may proceed to examine the other evidence on record. It is important to notice that PW.5, the eldest brother of the deceased and the appellant herein, who was cited in the chargesheet as an eyewitness (CW.6) and examined as PW.5, has totally denied having witnessed the incident. He also states that there was no dispute between the appellant and the deceased with respect to the family partition. This coupled with the testimony of PW.6 Basappa who is the father of the deceased and the appellant has also categorically dismissed the allegation that there was any dispute between the accused and the deceased with regard to family partition. The other two eyewitness who were cited in the chargesheet namely Kanteppa Jalpur (PW.7) and Parshuram Chincholi (PW.8) have also not supported the case of the prosecution and on the other hand, they have repeated that the deceased died due to the fall from the staircase. 11. When we read the cumulative effect of the testimony of the witnesses, it not only becomes clear that the so called motive, that the appellant was dissatisfied with the share given to him in the family partition, was the decisive factor lurking in the mind of the appellant and he gave vent to the same by striking a tremendous blow on the head of the deceased, seems very remote. This view gathers support from the fact that the partition had taken place five years prior to the incident. Moreover, if the appellant was not happy with the partition, his grievance lies against his father, PW.6 Basappa and not against the youngest brother, the deceased. This view gathers support from the fact that the partition had taken place five years prior to the incident. Moreover, if the appellant was not happy with the partition, his grievance lies against his father, PW.6 Basappa and not against the youngest brother, the deceased. Another aspect which does not corroborate such an allegation is the admitted fact that out of the 18 acres of agricultural land which was inherited by Basappa, he apportioned about 3 acres of irrigated land to the eldest son Shivappa (PW.5), more than 8 acres to the appellant and about 7 acres 20 guntas in favour of the deceased. On the face of it, there seems to have been an equitable partition, which has been emphasized by the father Basappa and the eldest son Shivappa. Therefore, the theory put forth by the prosecution is not supported by the evidence on record. 12. The next question is whether a conviction can be recorded only on the basis of medical evidence? It is by now well settled that reliance on medical evidence is required for corroboration of the testimony of an eyewitness or circumstantial evidence. Moreover, the doctor who conducted the post mortem of the deceased has opined that on examination of the dead body he found the following external injuries: 1. Sutured lacerated wound measuring 5x3x1cms over left temporo parietal region. 2. Neck, fingers, nail bets are intact. On internal examination, he found the following: 1. Skull - linear fracture of 4x5cms over left temporo parietal region running coronally. 2. Brain - Diffuse subdural haemorrhage and subarchnoid haemorrhage over right temporo parietal region. 3. Abdomen wall, peritoneal cavity both are intact. 4. Stomach contains 100ml. partly digested rice material. 5. Small and large intestine intact. The cause of death is of head injuries, diffuse subdural haemorrhage and subarchnoid haemorrhage over right temporo parietal region. 13. On the wooden stick (MO.1) being shown to the doctor, he has stated reiterating his opinion at Ex.P.22 that the wooden stick might cause injury, which are present on the deceased. To a question posed by the defense counsel during the cross-examination, the doctor, PW.15 has stated that if a man falls from a height and if head comes in contact with ground then injury as shown in his report may be caused. To a question posed by the defense counsel during the cross-examination, the doctor, PW.15 has stated that if a man falls from a height and if head comes in contact with ground then injury as shown in his report may be caused. However, the doctor witness has volunteered to state that if a man falls from height there is also a corresponding injury to other parts of the body. It all depends upon how a person falls from height and also depends upon the physical fitness. Therefore, even the medical evidence does not rule out the possibility of death of the deceased from a fall from certain height. 14. Having considered the case comprehensively, we find that the testimony of PW.1 does not inspire full confidence in this Court. We have noticed the settled principles of law where there is a sole eyewitness and is a close relative of the deceased, courts should be slow in accepting such testimony. Further, unless and until such testimony is wholly reliable and the other evidence would corroborate the evidence of the eyewitness, conviction should not be recorded. Time and again it has been repeated that in an appeal against conviction, having examined the evidence and material available on record, if the appellate Court entertains a doubt in the case of the prosecution, the benefit of doubt should go to the accused. 15. For the reasons stated above, we are of the considered opinion that the appeal should succeed. Consequently, we allow the appeal and set aside the order of conviction recorded by the Fast Track Court I & II, Bijapur in Sessions Case No.163/2010 for the offences punishable under sections 504, 506 and 302 of IPC. The bail and surety bonds furnished by the appellant are hereby cancelled, if any amount of fine is deposited by the accused, the same shall be ordered to be refunded on proper identification and acknowledgement.