Basappa Siddappa Halli vs The State of Karnataka

K.N. Phaneendra, J—The present appeal is preferred calling in question the judgment of conviction and sentence passed in S.C. No. 19/2009 by the First Additional Sessions Judge at Bijapur, vide the judgment dated 03.07.2010, wherein the accused/appellant is convicted for the offence punishable under Section 302 of IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 50,000/- and in default to undergo simple imprisonment for a period of five months. The Trial Court has also ordered that out of fine amount of Rs. 50,000/-, Rs. 25,000/- shall be paid to the complainant as compensation.

The brief factual matrix of the case that emanate from the records and also as could be seen from the charge papers are that, the complainant/Somawwa - PW.6 is the wife of one Sharanappa (deceased). They are residents of Bankalagi village. She was given in marriage to the deceased and they were blessed with six children. The accused is none other than the full blood brother of the deceased. It is the case of the prosecution that, partition had taken place between the brothers, seven acres of land given to the accused and remaining five acres of land was allotted to the deceased. Apart from this, it is further case of the prosecution that an extent of 10 acres of land was given by the parents of the complainant and the said land was mutated in the name of the deceased. The accused though had no right, but he had been demanding share in the said land. In this context, it appears the accused often quarreling with the deceased.

In this background, it is alleged that, on 09.05.2008 the complainant/PW.6-Somawwa and her husband were proceeding towards their land and when they came near the house of one Shankreppa Paled, at that time, the accused came to the said spot holding an axe in his hand and demanded with the deceased a share in the land which was alleged to have been given to the deceased by the parents of the complainant, but the deceased denied the demand of the accused in the said property, then the accused has assaulted the deceased with the said axe on his head, chest, face and other parts of the body. At that time one Gollalappa Goundi, Srimanth Halli, Ramachandrappa Managuli, Shivalingappa Goundi and Gangabai, who were all present had tried to resolve the dispute. The deceased having been sustained injuries and fell down on the ground. The complainant has made attempts to put water to his mouth but in spite of that the deceased succumbed to the injuries on the spot. The accused ran away from the spot holding the said axe. On the basis of the above said factual aspects, after the investigation the charge sheet was filed. The accused was arrested on 09.05.2008 itself and since then it appears he has been in judicial custody. The Trial Court after securing the presence of the accused framed charges for the above said offences and put up the accused on the trial.

The prosecution in order to bring home the guilt of the accused, examined as many as 18 witnesses and got marked Exs. P1 to P18 and the material objects-MOs.1 to 17.

The prosecution witnesses examined before the Court have stated about the complicity of the accused. The prosecution in fact has mainly relied upon the motive factor, the evidence of the eyewitnesses, recovery of incriminating articles at the instance of the accused and other circumstances. Before adverting to the materials available on record, it is necessary for us to just have glance of the evidence of the witnesses examined by the prosecution.

PW.1 is Dr. Mahendra Mahadevappa Kapse has conducted the postmortem examination on the dead body of the deceased Sharanappa and also gave opinion about the weapon during the trial as per Ex. P1. PW.2 -M.C. Yaranal is the Assistant Executive Engineer who after visiting the spot, prepared a sketch map of the scene of offence as per Ex. P3. PW.3 - Shivalingappa Kiranagi and PW.4 - Yallappa Valakundi are the witnesses to the inquest proceedings marked at Ex. P4. They have also identified MOs.2 and 3 under which the police have seized the sample of blood stained mud. They have also identified their signatures on the body search panchanama as per Ex. P6 marked as Ex. P6(a) and (b) but they failed to identify MO.4 - Shirt. Ex. P7 is another Mahazar under which the police have recovered MO.1 - Axe at the instance of the accused. Ex. P8 is another Mahazar for which they are the panchas under which the police have seized MOs.5 to 7, the clothes of the deceased. PW.5 - Mamataj Begum Talikoti is the lady constable, who carried the FIR to the Jurisdictional Magistrate, which is marked as Ex. P9. PW.6 -Somawwa, PW.7 - Gangabai, PW.9 - Srimant, PW.10 -Gollalappa, PW.11 - Shivalingappa, PW.12 -Ramachandrappa, PW.13 - Shankreppa and PW.14 -Basappa are the eyewitnesses to the incident. Out of them, PWs.11, 13 and 14 have turned hostile to the case of the prosecution and their statements are marked as per Exs. P12 and P13. PW.8 - Amogeppa is the scribe of Ex. P10, the complaint. PW.15 -Sharanagouda is the police constable who produced the clothes of the deceased after the postmortem examination, which are stained with blood recovered as per MOs.5 to 7 under a Mahazar Ex. P8. PW.16 -Riyazahmed Kudagi is the carrier of the material objects i.e., MOs.1 to 7. He submitted the same to FSL and his report is as per Ex. P15. PW.17 - Hanamant is the PSI who received the complaint and registered a case in Crime No. 105/2008 for the offence punishable under Section 302 of IPC on the basis of Ex. P10 and dispatched the FIR to the Court. FIR is marked at Ex. P9. PW.18 - Vithal P. Jagali is the CPI who conducted the investigation and laid the charge sheet against the accused. There is no need to go in detail with regard to the evidence of all the witnesses as rightly argued by the learned counsel for the appellant/accused. The prosecution mainly relied on the motive factor, version of the eyewitnesses who were supported the case of the prosecution and the recovery of the articles at the instance of the accused.

Learned counsel for the appellant strenuously contends before us that though the prosecution has projected a particular motive in order to prove the guilt of the accused, but it has not produced sufficient materials to establish the motive factor. Further he contends that, even assuming that the prosecution has placed some materials to show that the incident in question has happened, but in view of the injuries sustained by the deceased, coupled with the evidence of the Doctor and other witnesses, it cannot be undoubtedly said that the accused had any intention to kill the deceased. Further added to the above said contention, learned counsel contended that some of the eyewitnesses have turned hostile to the prosecution, though some have supported the case of the prosecution, therefore, looking from all the surrounding circumstances, it cannot be said that the prosecution has proved the case beyond reasonable doubt. The learned counsel further canvassed before us that even for a moment accepting that the accused has committed such an offence, the offence does not fall under Section 302 of IPC, but it falls under Section 304 of IPC. Therefore, he prays for acquittal of the accused at one breath and he requests the Court in the alternative to reduce the sentence for the offence under Section 304 Part- I or II of IPC.

Countering the above said submissions made by the learned counsel for the appellant, the learned HCGP supporting the judgment of the Trial Court contended that, the motive takes the backseat when the eyewitnesses'' version is credible and acceptable. The eyewitnesses'' version invariably proves the case of the prosecution beyond all reasonable doubt. Though sufficient materials may not be there to support the motive factor, nevertheless the case of the prosecution cannot be thrown-out on that ground alone. So far as the recovery of incriminating articles at the instance of the accused is concerned, though the witnesses have not fully supported this particular circumstance, nevertheless there is no reason to disbelieve the version of the Investigating Officer. There is no suggestion to the Investigating Officer that he has any hatred or bias against the accused. Therefore, looking to the entire materials placed before the Court, the prosecution has proved the case to the hilt. Therefore, the Trial Court after giving proper reasons has convicted the accused and sentenced him accordingly for the offence punishable under Section 302 of IPC, which does not call for any interference by this Court.

In the above backdrop the point that would arise for our consideration is.-

"Whether the trial Court has committed any error in appreciating the evidence on record and erroneously convicted and sentenced the accused for the offence under Section 302 of IPC? "

Having heard the arguments of the learned counsel for the appellant and learned HCGP, the Court has to bestow its attention mainly with regard to the eye-witnesses'' version and thereafter motive and recovery, and real intention of the accused, if the prosecution has proved the case against the accused beyond reasonable doubt.

There is absolutely no dispute regarding the homicidal death of the deceased, but how the death occurred and who is responsible for the homicidal death of the deceased has to be unearthed on the basis of the evidence on record. So far as the eyewitnesses'' version is concerned, as rightly contended by the learned HCGP that the eyewitness (PW.6) - Somawwa is none other than the wife of the deceased and other witnesses have also fully supported the case of the prosecution. We have carefully once again evaluated the evidence of the said prosecution witnesses. PW.6-Somawwa has categorically and vividly stated about the incident in question and also about the motive. She has averred in her evidence that, out of 12 acres of land which is the ancestral property belonging to her husband, about 7 acres 7 guntas land was given to the accused and they retained 5 acres of land. But the accused was not satisfied with the same and he was also demanding a share in 10 acres of land which was given to the complainant by her parents and the same was mutated in the name of the deceased. She has also deposed about the incident and also presence of the eyewitnesses. She has specifically mentioned the names of the eyewitnesses not only in the FIR-Ex.P10 but also in her evidence and she states that the eyewitnesses were present and they tried to resolve the dispute, but by that time, the accused had dealt the death blow on the deceased. She further stated that on that particular day, the deceased succumbed to the injures on the spot, though she tried to pour water into the mouth of the deceased. The accused in fact ran away holding deadly weapon (Axe) in his hand. She categorically identified the material objects- MOs. 1 to 7.

In the course of cross-examination, so far as this incident is concerned, nothing has been elicited, but the cross-examination was mainly concentrated in order to establish that the motive was absent in the prosecution case and to show that the parents of this complainant were very poor and there was no occasion for them to give 10 acres of land in favour of the complainant which alleged to have been mutated in the name of the complainant. The cross-examination also shows that some alternative suggestions have been made that the deceased was a rowdy element and he had lot of enemies and therefore, some other persons might have committed the offence, because of enmity between the accused and the deceased, a false implication has been made, but those suggestions are denied. But, looking to the cross-examination and examination-in-chief of PW.6, it is fully corroborated by the other witnesses, so there is no reason to disbelieve the evidence of PW.6. So far as the incident is concerned, we would like to discuss with regard to the motive factor after ascertaining whether the prosecution has proved the incident beyond reasonable doubt.

PW.7-Gangabai is none other than the daughter of the complainant and deceased Sharanappa. She was also very much present at the time of the incident. She replicated her evidence as that of PW.6. Similar questions have been put to this witness also during the course of cross-examination, but nothing is elicited to discredit her. PW.8 is the scribe of Ex. P10. So far as this aspect is concerned, cross-examination not adverted to this witness with regard to lodging of the complaint on that day. Though it is suggested that prior to lodging of the complaint, PW.6-Somawwa was not acquainted to this witness (PW.8). But he denied the suggestion that he was not properly drafted the complaint etc. PW.9-Srimanth Hiragappa Halli is also an eyewitness, who spoken about the presence of PWs. 6, 7 and other witnesses namely, CWs. 7, 8 & 9, at the spot and he was also very much present and he tried to rescue the deceased from the clutches of the deceased; But in spite of that, the said unpleasant incident has occurred on that day. He has specifically stated about the overt acts of the accused. During the course of cross-examination, though it is suggested to the witness that he has not gone to the place where the incident has occurred, but he denied those suggestions. Though there are some discrepancies with regard to the timings, but looking to the cross-examination of these witnesses, nothing is elicited as to why these witnesses should give false evidence against the accused person. Some questions have been put to this witness attempting to elicit about the conduct of the deceased to the effect that the deceased Sharanappa was ill-treating his own father and he tied the hands and legs of his father and thrown him out of the house etc. and that the deceased is a rowdy element and there are number of cases pending against him etc., but those suggestions remained as suggestions, as they are bereft of proof. The conduct of the deceased in this case may not play a dominant role, when the prosecution is able to establish the case of murder beyond reasonable doubt. For the simple reason that, the deceased is an unwanted rowdy element to the society, the accused cannot take advantage of such conduct of the deceased and take the law in to his hand and kill him. Therefore, in order to establish the defence of the accused, the accused has to place sufficient material to show that, actually on that particular day no incident happened and he has not committed such an offence. Such materials are not available in the course of cross-examination of this witness. Though it is suggested to the eye-witness that they were all deposing before the Court at the instance of the complainant-Somawwa, but it holds no water, because these suggestions have been denied by this witness.

PW. 10-Gollalappa Basappa Goundi has similarly stated about his presence and taking place of the incident and the over-tact of the accused, causing of injuries on the deceased and also the death of the deceased on the spot. He also spoken about the presence of other eyewitnesses including PWs. 6 & 7. In a similar fashion, same type of questions have been put with regard to the motive factor and also conduct of the deceased. It is also suggested to these witnesses that the deceased earlier had committed rape on the daughter of one Shantawwa Goni and demolished their house behaving like a rowdy etc. But, those suggestions have been categorically denied by these witnesses. Apart from putting these questions in the cross-examination, nothing has been elicited so as to disprove the evidence of these witnesses and to hold that the evidence of these witnesses are not creditworthy for acceptance.

PW.11-Shivalingappa is an eye-witness. Though he turned hostile to the prosecution, but in our opinion, his evidence cannot be totally discarded because, in his evidence he has stated that on that particular day, he heard the noise of galata near the house of Shankreppa Paled; he went there and saw that there was a quarrel between the accused and the deceased; the deceased was screaming. Further he stated that he do not know anything and he cannot identify MO.1. Though he turned hostile to the prosecution, nevertheless, the presence of the accused and the deceased and their quarrel on the date and time of the incident has been fortified by this witness though he has not fully supported the case of the prosecution. But he also corroborates the evidence of other supported witnesses with regard to the presence of the accused and the deceased on that day and they were quarrelling with each other, and the deceased was screaming for help.

PW. 12-Ramachandra Basappa Managuli and PW.13-Shankreppa Chandram Paled are also categorically stated about their presence and when they came near the house they found the dead body of the deceased. PW.13 also not fully supported the case of the prosecution. However, PW.12 has meticulously in detail stated about the incident and also he corroborated the evidence of other witnesses by stating about the presence of the other eyewitnesses at the spot. Similar questions have been put to these witnesses with regard to the motive factor and also about the conduct of the deceased. Except that nothing worth is elicited in the course of cross-examination as to why these witnesses have to be disbelieved. PW.13 though turned hostile to the prosecution, but he has also stated that on the date of the incident he had been to his lands at about 8.00 a.m. and he returned to home at 12.00 noon. When he came to the house, he found the dead body of Sharanappa lying in front of his house, but he said that he do not know as to who assaulted Sharanappa and he did not come to know about who murdered the deceased and the police have not recorded his statement. He denied the suggestion that he made a statement before the police as per Ex. P12. But, he has not supported case of the prosecution even during the course of cross-examination. Nevertheless, he also to some extent supported the case by saying that the dead body of Sharanappa was found in front of his house. He corroborated the evidence of other witnesses that the incident had taken place in front of the house of PW. 13 and the accused has assaulted the deceased and the deceased died on the spot in front of the house of this witness. Though PW.13 has not supported the case of the prosecution, nevertheless he has corroborated the evidence of other witnesses to the extent that the dead body of the deceased was found in front of his house at the relevant point of time.

PW.14-Basappa Gurappa Paragond is another eyewitness. He also turned hostile to the prosecution. He deposed before the Court that on the date of the incident, he had been to his land and returned at 12.00 noon and he also states that the dead body was found lying in front of his house. But he states that he does not know what was happened prior to that time.

Looking to the above said evidence of the eye-witnesses, the eyewitnesses are none other than the relatives and neighbours of the deceased and they are all of the same village where the deceased was residing. In the course of cross-examination of all these witnesses, it has been concentrated much with regard to the conduct of the deceased and there is no reason as to why these witnesses have to be disbelieved, is not at all elicited.

There is no elucidation of any facts with regard to any enmity or ill-will or hatredness between the accused and these witnesses, in order to discard their evidence. Therefore, even on re-evaluating the cross-examination of these witnesses, we do not find any strong reasons to disbelieve the evidence of the eyewitnesses. Therefore, we do not find any strong reasons to differ from the opinion of the Trial Court with regard to the appreciation of the evidence of these eyewitnesses about the incident.

Now coming to the other important aspects raised by the learned counsel with regard to the motive factor, PWs. 6, 8, 7, 9, 10 & 12, though they have not stated specifically about the motive factor, but they have certainly stated that there was dispute between the deceased as well as the accused with regard to some landed property. It is the case of the prosecution that 10 acres of land was given to the complainant by her parents and the said land was mutated in the name of the deceased. But, as rightly argued by the learned counsel, no document has been produced to show that this land was given to the complainant by her parents and the same was mutated in the name of the deceased. Though the motive factor has been stated by PWs. 6 & 7, but sufficient materials are not produced to establish this particular factor. As we have already narrated, when strong and unbeatable evidence is available through eyewitnesses, even if the factum of motive has not been proved beyond reasonable doubt, that itself is not sufficient to throw-out the other proved facts of the prosecution. Therefore, we do not give much importance to the motive aspect is concerned.

It is the case of the prosecution that the Investigating Officer in the presence of the panchwitnesses (PWs. 3 & 4) has recovered the bloodstained mud and sample mud from the spot as per Exs. P5 and conducted inquest as per Ex. P4. These two aspects are concerned, there is no much cross-examination. But so far as the facts of recovery of MO.4 under Ex. P6 and MO.1 under Ex. P7 at the instance of the accused are disputed by the accused. So far as these two aspects are concerned, though the witnesses PWs. 3 & 4 have turned hostile to the prosecution, but they have supported the case of the prosecution on other aspects, so far as the circumstances which relates to the inquest proceedings, spot mahazar collecting the mud (MO.2), sample mud (MO.3) and also seizure of the clothes of the deceased (MOs. 5 to 7) under Ex. P8. PW.3, in the course of cross-examination also not supported that in his presence the shirt of the accused and an Axe was recovered under the said two mahazars, nevertheless, he supported so far as the other aspects are concerned. PW.4- Yellappa is also in similar fashion has stated that he do not know about the recovery of these articles at the instance of the accused. The Investigating Officer (PW.18) in his evidence has categorically stated that on the said particular day, when the accused was produced at the spot by PSI, the accused has given his voluntary statement and led the police and panchas to the place where he has hidden the axe used for commission of the offence, which was situated on Bankalagi - Mannapur road, beneath a bridge, where he took-out an axe stained with blood and produced the same before the Investigating Officer and the panchas. The police seized the same under panchanama at the said spot as per Ex. P7. It is also stated that immediately after the arrest of the accused, he noticed that the shirt worn by the accused was stained with blood, therefore, he seized the same under a panchnama (Ex.P6) in presence of the panchwitnesses. Though this particular portion has been subjected to cross-examination, it was just by putting suggestion that the Investigating Officer has not done so. By reading the evidence of the Investigating Officer and PWs. 3 & 4, we have noticed that the PWs. 3 & 4 have categorically admitted their signatures on these particular manazars and further added to that, it is also elicited that they have put their signatures to the said mahazars. There is no suggestion to the Investigating Officer that the Investigating Officer has got any ill-will or hatred against the accused and he has got any interest to falsely implicate the accused into the crime. When a public servant viz., police officer with all sincerity goes to the spot, arrests the accused, records the voluntary statement of the accused, recovers some articles and particularly the panchwitnesses admit their signatures on the panchnamas, there is no reasons to disbelieve the version of the Investigating Officer so far as the aspect of recovery of incriminating articles is concerned. Therefore, though panch-witnesses have turned hostile to the prosecution, there is no reason exactly as to why the evidence of the Investigating Officer is to be discarded. If we believe the version of the Investigating Officer and also seizure of MOs. 1 and 4 at the instance of the accused, now the point remains for our consideration is that whether any purpose has been served by recovery of these articles by the Investigating Officer. The Investigating Officer has sent these articles to the FSL and there is no dispute that these articles were not taken to the FSL and no report has been secured. The records also disclose that the report of the FSL is marked as Ex. P18. Ex. P18 shows that Item No. 3 & 4 are sample mud and a shirt, Banian and Dhoti were marked as MOs. 5 to 7 belonged to the deceased, which were seized under a mahazar Ex. P8. A shirt and axe were marked at Mos. 4 & 1 recovered at the instance of the accused contains human blood particularly ''A'' Group blood. Therefore, the circumstances of recovery of these articles connect to the blood group of the deceased, which amplify the case of the prosecution and also corroborate the evidence of the eyewitnesses. The accused has not properly explained this incriminating evidence against him as to how his shirt was stained with the blood of the deceased. Therefore, there is no reason to discard or disbelieve the story of the prosecution.

Now coming back to the submissions made by the learned counsel with reference to the motive factor and the intention of the accused, as we have already narrated that once the prosecution proves the case beyond all reasonable doubt by means of other believable circumstances, particularly, the evidence of the eyewitnesses and recovery, even though the motive is not proved, the case of the prosecution cannot be discarded, though we have observed that there is no sufficient material to establish the motive factor in this case.

Last but not least, the learned counsel has contended that the nature of injuries sustained by the deceased coupled with the evidence of the Doctor-M.M. Kapse (PW.1) cannot be with all certainty said that the accused had real intention to kill the deceased. He drawn our attention to the evidence of PW.1-Dr. M.M. Kapse, who has stated that on 09.05.2008 on the request of Sindgi Police he has conducted post-mortem examination on the deadbody of Sharanappa. He has narrated the nature of injuries viz., four lacerated injuries, bleeding from left ear, peeling of skin over dorsum of left hand, Bar marks present over anterior aspect of both legs. It is also elicited that in the examination-in-chief of this witness that these injuries could be caused by means of assaulting a person with an axe marked as MO.1. In the course of cross-examination, an alternative causing of the injuries has been suggested, but the doctor has denied that if a person riding scooter, falls on tar road and dragged to some extent he might suffer such type of injuries. What the learned counsel want to canvass before us is that the axe is to be presumed as a weapon having sharp edge. If a person is hit by sharp-edged weapon, it should definitely cause incise wounds or clean cut wounds. But the dead body of the deceased sustained only lacerated injuries and not even a single incise wound. Of course, it is also elicited from the mouth of the Doctor that Injury Nos. 1 & 2 could be caused by MOs. 1 and Injury Nos. 3 to 7 might not be caused by this type of weapon. In examination-in-chief and in cross-examination, the doctor in totality has stated that the injuries can also be caused by the weapon like MO.1. Learned counsel contended that even if we assume that the accused has assaulted the deceased with the said axe, if he had real intention to kill the deceased, he would have used the sharp-edged weapon to assault the deceased. But we cannot imagine what was the intention of the accused, because no Court can read the mind of the accused directly, but the intention has to be gathered from supporting circumstances. The circumstances clearly goes to show that he was holding a deadly weapon viz., Axe in his hand and without there being any quarrel or enragement, he indiscriminately assaulted the deceased, selecting the vital part of the body, the head. It is not made known that whether it was from the hind portion of the weapon or from the sharp-edge portion of the weapon. Irrespective of that, severe injuries have been caused on the deceased which was seen by the eyewitnesses and more than that, the deceased died on the spot having sustained such severe injuries. It has no significance whether he used the sharp-edge of the weapon or blunt side of the weapon for assault, but the force in which he has assaulted and the vital part of the body selected for assaulting the deceased, play a dominant role.

In this case, the accused with all sufficient force must have assaulted the deceased in order to cause such deadly injuries on the deceased. It goes without saying that when the death occurs instantaneously, immediately after the fatal blows were inflicted, the intention has to be gathered on such attending circumstances, not merely on the basis of the evidence given by the Doctor. The doctor is not a person who can give any opinion with regard to the intention of the accused, but the say of the Doctor is also one of the circumstances and not a sole circumstance. When the evidence of the eyewitnesses is strong enough to show that the accused had such an intention to kill the deceased and the accused has used the said deadly weapon, selected the vital part of the body of the deceased and with sufficient force caused such a deadly injury, those factors are sufficient to draw an inference that the accused had real intention to kill the deceased. Therefore, we do not want to over-burden this judgment by mentioning the decisions cited by the learned counsel in this behalf.

The facts and circumstances placed before this Court, in our opinion, are sufficient to come to the conclusion that the accused with an intention has committed such an offence and we do not find any strong reasons to differ from the opinion expressed by the learned Sessions Judge in convicting and sentencing the accused for the offence punishable under Section 302 of IPC. There are no materials to come to any other conclusion that the offence would fall under Section 304 Part I or II of IPC. Therefore, we are inclined to confirm the judgment of the Trial Court by dismissing the appeal.

Accordingly, the appeal is dismissed.