I IN THE HIGH COURT OP bARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE Q7FH DAY OF APRIL 2011 PRESENT THE HON’BLE MR. JUSTICE SUBHSH B. ADI AND THE HON’BLE MR. JUSTiCE N. ANANDA CRIMINAL APPEAL No.51 1,/2006 BETWEEN: The State of Karnataka By Navalgund Police, .. .Appellant (By ShrLV,M.Banakar, Additional S.P.P.) AND: Mahadevappa Basappa Neginal, Age 30 years, 0cc: Agriculture, R/o Bvalai, Navalgund Tq. Dist: Dharwad. . . . Respondent (By Shri. R. 0. Kodli, Advocate) This criminal appeal is filed under Section 378 (1) and (3) of the Code of Criminal Procedure, by the State Public Prosecutor for the State praying to grant leave to file an appeal against the Judgment dated 29.10.2005 passed by the Presiding Officer, Past Track Court— I, Dharwad, in S.C,No.62/2004, acquitting the respondent/accused for an offence punishable under section 302 of IPC. This criminal appeal coming on fbr final hearing this day. Subhash B. Adi J., delivered the following: I’ 2 JUDGMENT Appeal by the State against the judgment of acquittal in S.C.No.62/2004, dated 29.10.2005, on the file of Fast Track Court - I, Dharwad. 2. Accused - Mahadevappa Basappa Neginal was tried for an offence punishable under section 302 of the Indian Penal Code. Accused, PW1 1 and PW7 are sons of deceased. PW6 is the daughter and PW1O is the wife of deceased Basappa Neginal. PW13 - Ningavva and PW12 - Renuka are the wife and daughter of PW1 1 and PW9 is the cousin of PW11. 3. There was partition between the deceased, PW1 1, PW7 and the accused and all of them were residing separately. The deceased was living with his wife — PW1O in the front portion of the house facing western side. PW1 1 was staying in the middle portion and accused was staying in the hind portion and PW7 was living separately. About three months prior to the date of incident (26.0 1.2004), there was a quarrel between the deceased and the accused, in connection with telephone, in the said quarrel accused had 3 * broken the telephone in the house of the deceased. At about 07:00 a.m., on 26.01.2004, the deceased was preparing flag for his grandchildren by using bamboo stick. In this regard, the accused picked up a quarrel, telling the deceased not to use the bamboo stick. When the deceased took bamboo stick to prepare flag, the accused assaulted on the head of the deceased with an axe and the deceased suffered grievous injuries and fell down. PW11 the son, PW1O the wife, PW13 daughter-in-law and PW12 the granddaughter of deceased saw the incident and PW 11 took the deceased to the Government Hospital at Morab. PW16 - Dr. Praveen M. Haiti, after giving first aid, advised PW1 1 to admit the deceased to K.M.C. Hospital at Hubli for further treatment, however before they took the deceased to Hubli, the deceased succumbed to injuries at about 09:40 a.m. in the Government Hospital at Morab. PW1 1 gave a complaint as per Ex.P.8. The complaint was registered by PW19 - Dundappa Mallappa Gasti in Crime No.6/2004. PW19 along with Police Constables went to the Government Hospital. By that time, PW18 - had already reached the Hospital, he after 4 conducting inquest, sent the body to postmortem examination and vent to the spot and conducted spot panchanama as per ExP1. PW16 Dr. Praveen M. Harti conducted post-mortem examination and gave post-mortem report as per ExPJ3 and gave his opinion as per ExP14. On 28.0L2004, the accused was arrested and his voluntary statement was recorded. In pursuance of the voluntary statement, PW18 seized M08 under ExP4. PW18 after recording the statements of the witnesses and after collecting the materials and after completion of the investigation, filed the charge sheet. 4. On committal. the learned Fast Track Judge after securing the presence of the accused, framed the lollowing charges: - ta ar. (it:) iitOt —Dfl &u — iniin 2ñ iX 26Oi ()O4dQ rrn zL Di 3. The prosecution to prove the charge, examined PW1 to PW19 and marked Ex.P.1 to Ex.P.19. On the defence side, portion of the staternent of PW3 made before the Police under section 161 of the Code of Criminal Procedure marked as Ex.D.1 and Ex.D.2. MOl to M09 uere produced. b. The prosecution examined PW7. PW1 1. PW1O. PW12, and PW13 as cvcvitnesscs to the incident. PW1. PW2. PW3, PW4 and PW5 were examined as panch witnesses mahazar, inquest mahazar and seizure mahazar of material objects. PW19 had registered the complaint PW18 is the Investigating Offieer who investigated the matter and filed the charge shce PW8 was examined h\ the prosecution Ta) protu that bx.P S — complaint was written by him at th instanc of PW 11 PWY ‘s the usin of PW 11, whc a is examined to prove the motive. P\\ lb IS I he Doetor, a ho /_ f r 6 conducted the postmortem on the body of deceased and gave his opinion as per Ex.P. 14 and postmortem examination report as per Ex.P.13. PW6, the daughter of the deceased was examined to prove that the accused had made an extra judicial confession before her. 7. Prom amongst the eyewitnesses examined by the prosecution, PW7 and PW1O have turned hostile. PW8, who wrote the complaint has also turned hostile, PW1 to PW5, panch witnesses to the spot mahazar, inquest mahazar and seizure mahazar have also turned hostile. PW6, the daughter of the deceased has also turned hostile and denied that the accused had made any extra judicial confession before her. PW9 has also turned hostile. Except PW1 1, PW12 and PW13 as eyewitnesses, PW16 — Doctor and PW18 — Investigation Officer and PW19 — Sub Inspector, who registered the case, no other prosecution witnesses hay-c supported the case of the prosecution. The entire case is based on the evidence of thes•e witnesses. 8. The trial court considering the evidence of these witnesses found that there is inconsistency in the evidence — ( U 7 of PW ii, PW 1 2 & PW 13, PW 12 & PW 1 3 are the daughter and the wife of PW 11. They are interested witnesses and there is enmity between the accused and PW 11. The motive is not established. In ExP8complaint, PW1 1, the complainant has stated that his deceased father was a freedom fighter and he was preparing the national flag to his grandchildren by using bamboo stick. The accused had objected for taking bamboo stick, despite his objection, the deceased had taken bamboo stick, for which the accused assaulted the deceased with an axe on his head, by that time, PWIO-Gangavva, the mother of complainant, PW13- Ningavva, the wife of the complainant came to the rescue of the deceased. The deceased was bleeding. The accused on seeing bleeding, ran away from the place, by that time, Ranganath, PW8KalIappa Fakkirappa Mooli and PW4’ Prakash came there and took the deceased in a jeep to Morab Hospital. where the deceased died at about 9.40 am. on the said day. 9. Whereas in the evidence, PW1 1 has stated that on 26.01.2004 at about 7 a.m ., when the deceased was 8 4 preparing the national flag by using bamboo stick, the accused came and objected and assaulted the deceased with an axe on the head. The accused was demanding money from out of freedom fighters allowance given to the deceased by the Government. In this regard, the accused used to quarrel with the deceased. In the complaint, PW1 1 has not stated that the accused was quarrelling with the deceased in connection with the demand of money from his deceased father. Ex.P.l4 opinion of PWI6-Dr.Praveen M.Harti shows that the injury is a lacerated wound. The evidence of PW 11, PW12 & PW13 does not corroborate with the evidence of PW16 as alt the three witnesses have stated that the accused assaulted the deceased with an axe but there is no corresponding injury suffered by the deceased. All the three witnesses have stated that the accused assaulted the deceased with an axe and the word r” literally meaning cannot be made applicable. Under the circumstances of the case, the trial court also observed that PW1 1 in the cross- examination has admitted that the relationship between PW1 1 and the accused was not good, as the accused was 9 repeatedly insisting PWI 1 to give “varadi” to enter his name in respect of the properties fallen to his share. SO also there was enmity in regard to the management of a tractor and a flour mill by PW 11 belonging to the Joint family. In the complaint given by PW 11 , he has stated that after the deceased was shifted to the Government Hospital at Morab, PWI I went to Morab Police Station and given complaint. Ex.P.8-complaint was registered by PW19 at 1 p.m. at Navalgund. In the cross-examination, PW 11 has admitted that he had not gone to Navalgund. 10. The trial Court further observed that the eyewitnesses PW-7 another son of the deceased, PW- 10-wife of the deceased and PW-9 cousin of PW- 11 have not supported the case of the prosecution, PWs. 11, 12 and 13 though have supported the case of the prosecution, in the cross-examination, have stated that there is enmity between PW-1 1 and the deceased. PW-12 in the cross-examination has stated that on the date of the incident, her father had gone to the tea shop at about 7.00 n.m. and herself, her sister and mother were in the kitchen. PW- 11 brother of the 4 . I0 accused also admitted that accused and himself are not in talldng terms and he has received the insurance amount about Rs.54,000/ for the year 2003-2004. Further PW-19 who registered the FIR has stated that PW- 11 appeared before him at about 1.OOp.m. on 26/1/2004 and gave a written complaint. Accordingly, he registered a case. PW-8 has stated that he wrote the complaint as per the dictation by the police. Where as PW- 11 has stated that he informed the police and police got some one to write the complaint. He does not know the name of the person who wrote the complaint. The persons who had accompanied PW- 11 have not written the complaint. In view of the inconsistency and enimity between PW- 11 and the accused, the trial Court disbelieved the evidence of PWs. 11, 12 and 13 and acquitted the accused. Against which, this appeal is presented by the State. 11. We heard learned Additional State Public Prosecutor and Sri. R.Q.Koldli, learned counsel for the accused. ccik!$r 11 12. The facts which are not in dispuie are PW- 11, accused and PW-7 are the sons of the deceased. PW-6 is daughter and PW- 10 is the wile of the deceased. Between deceased, PW-7, PW- 11 and the accused there was a partition. In a dwelling house, the deceased was occupying western front portion, PW-1 1 was occupying middle portion and the accused was occupying the eastern portion. The incident wok place inside the house of the deceased. The deceased was aged 82-83 years at the time of the incident. 13. So far as the motive alleged by the prosecution is concerned, initially the complainant in the complaint Ex.P-8 has alleged that the accused had broken the telephone instrument about one month back and in this regard the accused was angry and on account of this, the accused had developed enmity. On 26/01/2004 i.e., republic day when the deceased was preparing the Flags for grandchildren by using the bamboo stick for which the accused objected and assaulted. Whereas in the evidence, PW- 11 alleged that, the deceased, PW- 11 and the accused were residing in different portions of the same house. He was residing in the middle 12 portion. The accused was torturing the deceased demanding money as the deceased was getting freedom fighters allowance and he had also broken the telephone instrument about 3 months prior to the incident. The motive alleged in the evidence of the PW- 11 is a quarrel in connection with demand of money by the accused from the deceased, whereas PW-12 daughter of PW-l 1 alleged that the accused had picked up quarrel with the deceased as the deceased had taken bamboo stick for which the accused had objected. PW-13 has also stated that the dispute started in connected with the deceased taldng bamboo stick for preparing Flags for his grandchildren. Neither in the complaint nor in the evidence of PWs- 12 and 13 or in the evidence of PW- 10-wife of the deceased, they have stated that there was any quarrel in connection with demand of money. Even in the cross examination, it has come that bamboo sticks were taken only to prepare Flags for the grandchildren on the Republic Day. Though the prosecution has alleged the same as motive, it appears to be silly. Further according to the complainant, the brcaking of instrument was one month as Ii per the complaint and in the evidence he has stated that it is about 2 to 3 months earlier. Both PWs12 and 13 have stated that even after partition the accused was living with the deceased for about one year, though PW1 1 has separated and they have also admitted that the relationship was cordial. PW1O wife of the deceased and mother of PW 11 and the accused, has not supported the case of the prosecution nor she has stated any motive for the accused to assault. 14. It is not in dispute that the incident has taken place in the house of the deceased. The prosecution case is that the accused assaulted the deceased with an axe on his head as a result of which, the deceased died. Though PW7 son and PW1O-wife of the deceased are direct witnesses to the incident, they have not supported the case of the prosecution and have been treated as hostile, however, PW 10 in the crossexamination has stated that at 7 ,30.am. on 26/01/2004 there was a quarrel between the accused and the deceased in connection with taking bamboo stick by the deceased. There is consistency insofar as picking up 14 7 quarrel by the accused with the deceased in connection with using of bamboo stick. No doubt PW- 10 has not supported the prosecution case as regard to the accused assaulting the deceased and she has stated in the cross-examination that the deceased was aged and he was not able to balance himself and had a fall. 15. Now from the evidence of the prosecution, it is proved that the deceased sustained injuiy in the house which is not disputed. PW-10 though has not supported the case of the prosecution, but to the extent that there was a quarrel on the date and time of the incident, has been admitted. It is not the case of the prosecution or the defence that at the time of the incident or around that time, there was intervention of third party. The evidence of PW-1O to the extent that there was quarrel at 7.30 a.m. between the accused and the deceased in the house is clear and is acceptable. The evidence of PWs. 11, 12 and 13 shows that, the accused assaulted the deceased. The evidence of PW-19- investigating officer shows that the accused was arrested only on 28/01/2004. The evidence of PWs.7, Il, 12 and 13 15 p also show that the accused had not gone to the hospital along with the injured father(deceased) immediately after the incident. The evidence probablises that the accused had ran away after the incident and he was arrested on 28/01/2004. 16. It is suggested to the PW- 16 the doctor that the injury sustained by the deceased is possible if he falls on the hard surface. PW- 16, the doctor who conducted postmortem, has stated that the deceased had suffered only one injury i.e., on the left parietal region measuring 1 cm x 1.5cm. He has stated that there was fracture of skull measuring 7cms x 3cms and depressed fracture to cerebral and extra dural hemorrhage was present, left parietal lobe hemorrhage was seen. 17. If the evidence of the prosecution is appreciated in the light of the postmortem report and the evidence of PW 16, the doctor, the deceased who was aged about 82-83 years at the time of incident and as per the evidence of PWs. 11, 12 and 13 shows that the katta-plat form was of the height of 1 feet — 11/2 feet and it is suggested that such injury 4 16 is possible if a person falls on a hard surface. Whether the deceased, on account of losing balance and on account of fall on such plat form, could have sustained an injury resulting in causing the depressed fracture of the skull causing cerebral hemorrhage resulting in death within two hours, the postmortem report of the deceased does not disclose even a single injury, abrasion, contusion or laceration on any other part of the body except depressed fracture to the skull. It was argued that the prosecution witnesses have stated that the accused assaulted with an axe and the FSL report Exs.P 18 and 19 show blood stains on the sharp edge of the axe and by using sharp edge of the axe and assault by the same on the head could have caused deep cut injury on the head of the deceased. But the evidence of the doctor is otherwise. The doctor has stated that it is a laceration. In the absence of cut injury, the prosecution case that the accused had assaulted with an axe is highly improbable. No doubt the doctor has stated that it is a laceration. However, the presence of the accused at the time of the incident and the deceased sustaining injury at the same time and was taken (E* 17 t to the hospital where he succumbed to the injury and no other person had intervened at the time of the incident and the incident has taken place in the house of the deceased, even assuming PWs.1 1, 12. and 13 as interested as there was enmity between the accused and PW- 11, the circumstantial evidence and the evidence of PW- 10 corroborate the evidence of PWs. 11, 12 and 13 and the same would show the existence of fact that the accused was present at the time of the incident. Evidence of PW-10 shows that the accused had quarreled with deceased. Though opinion of the doctor that injury is a laceration, however the injury is depressed fracture of skull. As per the evidence the platform from where it is alleged that the deceased had fallen is of the height of 1 feet to 1 ‘A feet Even considering the defence case that the deceased must have fallen from the said platform, could the deceased who was 82-83 years old sustained only one injury on the left parietal region, of such a nature, ie., fracture of skull measuring 7 cm length and 3 cm breadth. As per postmortem report there are né injuries on the other part of the body of the I 18 deceased. it is highly improbable that the deceased of 82 sears falling down from the plat form of I to I ‘• feet could have only sustained depressed skull fracture without even an3 abrasion on the other part of the bod3. It ma be possible if a person makes a nose dive from a height with head doun and coming into contact with hard surface but even in such case there would be some injuries on the other part of the body which comes in contact with the hard surface. 18. In this case it is highly improbable that the deceased sustaining the injury on account of the fall. But the evidence of PW- 10 that the accused quarreled with deceased would prove the presence of the accused. The evidence of the prosecution also shows that there was no other person. PW-11, PW-12 and PW-13 state that the accused assaulted the deceased. The incident has taken place at 7 30 n.m. and immediately the deceased was taken to tin hospital where he suc cumbed to the injury at 900 a.m. These circumstances probablises that the accused was 4 19 present and had assaulted the deceased, and it was single blow. 19. But the evidence show no strong motive or preparation or intention on the part of the accused to assault the deceased to commit murder. The motive alleged appears to be very silly for which the son who had lived with his father even after partition could not have caused murder but in heat of passion he might have given one blow on the head without knowing that it could have resulted in death. In our opinion the presence of accused is manifest from the evidence of PW-10 and the evidence of PWs.11, 12 and 13 also do show that in a quarrel the accused has assaulted. It appears in a scuffle the accused gave a blow which resulted in death of deceased. The trial Court because the wife of the deceased PW- 10 and another son PW-7 of the deceased have not supported, motive has not been proved and there is delay in filing the complaint and PW- 11 had no gone to the police station, has not accepted the evidence of PW-lO. Though she is treated as hostile, but her evidence in the cross-examination support the prosecution case to the 20 extent that there was a quarrel at 7.30 a.m. on 26/01/2004. PWs.7, 11, 12 and 13 have also stated that incident took place at 7.00 a.m. and immediately they took the deceased to the hospital where the deceased died around 9.00 a.m. This probablise that in the incident the deceased sustained grievous injury which resulted in death. However, we are clear that the accused had not made any preparation, had no motive and also had no intention to cause the death of his• deceased/father but in a sudden quarrel, the accused has assaulted the deceased in a heat of passion. 20. The evidence lead by the prosecution do not prove the charge of offence punishable under Section 302 of Indian Penal Code. but the evidence prove that it is culpable homicide not amounting to murder. 21. The trial Court while appreciating the evidence, just because witnesses have turned hostile, has ignored the entire evidence of the eye-witnesses particularly the evidence of PW- 10 wife of the deceased. Even if the witness turns hostile, that does not mean that the Court should ignore the 21 entire evidence. Court should use such evidence which support the case. There is no suggestion by the defence that there was any intervention of third party in the house of the deceased. May be there is enmity between PW-1 1 and the accused but the credibility of the entire evidence of PW- 11, 12 and 13 cannot be discredited, however, to the extent that the accused was present and quarrel had taken place cannot be disputed. If this evidence is appreciated and the deceased had suffered injury and resulted in his death, the fact that accused had assaulted the deceased resulting in death is more probable, then the defence of the accused that the deceased had fallen and sustained injury does not appear to be probable and acceptable. We, on proper appreciation of the entire evidence, are of the opinion that the prosecution has proved that the accused is guilty of an offence punishable under Section 304 Part II and is liable to be convicted for the same. 22. Accordingly, we allow this appeal in part and set aside the judgment of acquittal of the accused for an offence punishable under Section 302 and in modification of the 22 same, the accused is convicted for an offence punishable under Section 304 part II of the Indian Penal Code. 23. Heard the learned Additional State Public Prosecutor and the counsel for the accused on