I IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 15 1 DAY OF ARPIL 2011 PRESENT THE HON’BLE MR. JUSTICE SUBHASH B. ADI AND THE HONBLE MR. JUSTICE N. ANANDA 005 BETWEEN State of Karnataka Through the Circle Police Inspector Banahatti, (By SriV, M Banakar, Additional S. P.P) AND: 1. Sourawwa W/o. Basappa E3ajantri Karkalamatti Age: 45 years 0cc: Agriculture R/o. Bandigani Taluka Jarnkhandi 2. Basappa S/o, Basalingappa Bajantri alias Karkalamatti Age: 48 years R o Bandigani Laluka, Jamkhandi Respondents (By Suit. NalinaK. Amicus Curae for RI (abscrt) and Sri nand Navalagunath Arnie s Curiae for RI (Absent)) This appeal is filed under section 378(1> and (3) of the Code of Criminal Procedure, by the State Public Prosecutor for the State praying that this Hon’ble Court may be pleased to grant leave to file an appeal against the judgment dated 12.10.2004 passed by the Sessions Judge, Bagalkot in S.C. No.77 / 2002, acquitting the respondentsaccused for offences punishable under sections 504, 506 & 302 of IPC. This appeal coming on for final hearing this day, Subhash B. Adi J., delivered the following: JUDGMENT State appeal against the judgment of acquittal of accused for offences punishable under sections 504, 506, 302 read with 34 IPC. 2. Accused No. 1 — SmLGourawwa, wife of Basappa Bajantri @ Karkalamatti and accused No.2 — Basappa son of Basalingappa Bajantri alias Karkalamatti were tried for offences punishable under sections 504, 506 and 302 read with section 34 of the Indian Penal Code. 3. The case of the prosecution is that PW1 is the son and PW is sister of the deceased Gangawwa. PW4 is daughter of PW6. Accused No. 1 is the wife of accuse.d No.2, Both the deceased and the accused were the residents of the same... viilag. Deceased Gangawwa was elected to Navalagi 3 Gram Panchayath. Accused were demanding favour from the deceased alleging that though she has become member of panchayath, she has not done any favour to them. Accused were insisting for an allotment of Government house. On 16.07.2002, in the evening, there was a procession of ass in the village. In the said procession, PW1, PW7 and the deceased had also participated. When the procession reached near the house of accused, accused No.1 abused the deceased as the deceased had not got government house allotted to them. PWI enquired accused No.1 as to why she was abusing his mother. Accused 1 and 2 tried to assault PW1, at that time, deceased Gangawwa came to the rescue of PW I. Accused No.1 assaulted the deceased with a club on her head. The deceased fell down and became unconscious. Accused No.2 assaulted PW1 with hands, by that time, PW7 came to the rescue of the deceased and PW1. PW1 took the injured Gangawwa to the house and gave treatment at the housc. On the next day morning, when Gangawwa became serious, PW1 took her to Al-Amin Hospital at Bijapur, since it was yen’ costly Hospital, at about 9.00 p.m. he brought her to Government Hospital at Jamkhandi. The police got the information of assault and 4 came to the hospital where the statement of PW1 was recorded by PW-15-PSI. PW15 registered the case in Crime No.57/2002 for an offence punishable under section 307 of the Indian Penal Code. On 17.07.2002 at 10:30 p.m., Police Constable informed PW15 that the deceased died in the Hospital. He informed PW12 CPI and went to the hospital and conducted inquest panchanama of the deceased Gangawwa as per Ex.P.9 and sent the dead body for post mortem examination. PW15 also seized saree, blouse and langa of the deceased as MO2 to MO4 under panchanama. Ex.P.10. PW12 took up further investigation and conducted the spot panchanama under Ex.P.8 and seized M.O.9-Blouse produced by Sannavva under Ex. P.11. PW 12 recorded statements of PW1, PW14 and PW7. On 21.07.2002, he recorded the statements of PW1O & PW1 1 and sent the seized articles to FSL. PW12 received post-mortem report and on completion of investigation, he filed charge sheet for offences punishable under sections 504, 506, 302 r/w 34 ‘PC. 5 4. On committal, the learned trial Judge secured the presence of the accused and framed the following charges: That you on 16.7.2002 at about 9-00 p.m. near Bandigani Navalagi Cross road, near your house with common intention committed criminal intimidation by giving threat to deceased Gangawwa with injury to her person with intent to cause alarm to said Gangawwa and, thereby, committed an offence punishable U/s 506 r/w S.34 of Indian Penal Code and within the congizance of this Court. 2. That you on the above said date, time and place with common intention intentionally insulted and, thereby, gave provocation to the complainant Chidanand intending that such provocation would cause the said Chidanand to• break public peace and, thereby, committed an offence punishable U/s 504 r/w S.34 of Indian Penal Code and within the cognizance of this Court. 3. That you on the above said date, time and place with common intention did commit the murder of Qangawwa intentionally or knowingly by you accused No.1 Gourawwa assaulting Gangawwa by iron boragade (dqws tadna) on her 6 head, due to which Gangawwa sustained injury and succumbed to the injury on 18-7-2002 in the Hospital and, thereby. committed an offence punishable U/s 302 r/w 5.34 of Indian Penal Code and within the cognizance of this Court.” 5. Both the accused pleaded not guilty and claimed to be tried. 6. The prosecution examined PW1 to PW16 and marked Ex.P. 1 to Ex.P. 15. On the defence side, portion of complaint was marked as Ex.D. 1 & Ex.D. 1(a). The portion of statement of PW4 made before Police under section 161 Cr.P.C., was marked as Ex.D.2 and Ex.D.2(a). M.0.1-One rope with iron metal, M.O.2-Saree, M.O.3-Blouse, M.O.4- Langa, M.0.5-Small bottle containing blood, M.0.6-Bottle containing some liquid, M.0.7-Cotton with bottle, M.0.8- Pieces of Bangles and M.0.9-Blouse seized were produced and marked before the trial Court. 7. Before the trial court, PW 1, the son of deceased, PW4, the niece of the deceased, PW6, the sister of the deceased were examined as eye-witnesses. PW2- Dr.Dharmaraya conducted post-mortem examination and issued Ex.P.2 and gave opinion as per Ex.P.3. PW3- 7 Dr.Kirankumar Sangappa Kittanagi. Medical Officer in Government Hospital at Jamkhandi, who examined the injured at about 4.35 p.m. on 18.07.2002 and issued Ex.P.4- ML.C Register. PW5-Dr.Subhas Tukaram Koparde, is a private practitioner, had examined the deceased and issued a letter as per Ex.P.6. PW7 though examined as an eye witness has not supported the case of prosecution. PW8 is a witness to the spot panchnama. PW9 is a witness to the inquest panchnama. PW1O, who is a witness to seizure panchnama of blood stained blouse, PW 11, another witness to seizure panchnama have not supported the case of prosecution. PW12, C.P.l., conducted spot panchnama on 18.07.2002. PW13, Police Constable took six seized articles to Forensic Science Laboratory. PW14, who is another witness to the seizure mahazar has also not supported the case of prosecution. PW 15 registered the complaint and conducted part of the investigation. PW16, the Police Constable, who handed over dead both of the deceased to Medical Officer at District Hospital at Bijapur and after the post-mortem examination handed over to PW 1. S 8. The trial court, relying on the evidence of PW1, PW3, PW4 & PW6 and relying on Ex.P.2-post-mortem report and Ex.P.3-opinion of PW2-doctor held that PW1, PW3 & PW6 being eye-witnesses, their evidence is supported by the evidence of the doctors and their evidence, proves the charge that the accused No.1 assaulted the deceased with an iron pulley used for drawing water from well (M.O. 1), as a result of which the deceased died. Further, the trial Court, considering the evidence of PW-1, PW-3 and PW-6 held that, the deceased sustained injury in a quarrel raised by accused No.1; there was no pre meditation or plan, and it was in a sudden quarrel between accused No. I and the deceased Gangawwa; accused No.1 assaulted the deceased with iron boragade and caused injury and held that the accused No.1 had committed an offence punishable under Section 304 Part II of the Indian Penal Code. The trial Court further held that the prosecution has not proved the charge for the offence punishable under Section 302 of the Indian Penal Code and that the evidence of the prosecution do not prove the charge against accused No.2 and accordingly acquitted the accused No.2. r • 9 9. The State against the acquittal of accused No2 and conviction of accused o. I for lesser offence punishable under Section 304 Part II of the Indian Penal Code, has filed the appeal. 10. Heard the learned Additional State Public Prosecutor. Though both the accused are represented by two different advocates, none of them are present before this Court. The accused No. I has not filed any appeal against his conviction. 1 1. We were taken through the entire records by the learned Additional State Public Prosecutor. 12. ExP1 is the complaint Le, the statement of PW 1 recorded by PW 15 wherein PW 1 has stated that on 16/07/2002 when PWi, PW7 and his deceased mother Gangawwa were in a procession of ass praying for rain and when the said procession reached the house of accused No.1, accused No.1 abused his mother. When PW 1 enquired them, both the accused tried to assault him By that time, the deceased came to the rescue of PW 1. accused 10 No.1 assaulted with the boragade on her head, as a result of the assault deceased fell down and became unconscious. 13. Though the incident took place on 16/07/2002, PW-1 stated that on the said night he gave first aid at home only and only on the next day morning, he took his mother to the Al-Ameen hospital, Bijapur since it was very costly hospital, he took her to Jamkhandi Government Hospital and at about 9.00 p.m. his statement was recorded by PW 15. P1W- 15 has stated that he received the information from Head Constable 461 that one woman from Bandigani village is admitted to Jamkhandi Hospital. Himself and the Head Constable visited the hospital and enquired with the Medical Officer. PW- 1 filed a written complaint Ex.P- 1 he registered the same in Crime No.57/2002 for an offence punishable under Section 307 of the Indian Penal Code. On 18/07/2002 he received information that the deceased died in the Government hospital Jamkhandi, thereafter, he informed PW- 12 CPI and went to the hospital and conducted inquest under Ex.P-9 and sent the dead body to postmortem I examination. 4 11 14. To support the case of the prosecution, PW-4 niece of the deceased has been examined. She has stated that at about 9.00 p.m. when she was near the hut of deceased Gangawwa, accused No.1 and accused No.2 abused Gangawwa for not getting government house allotted to them. Accused No.1 assaulted with sarpali on the head of the Oangawwa due to which Gangawa sustained bleeding injury on her head. Accused No.2 attempted to assault Gangawwa. Herself, Laxmawwa and Gourawwa(PW-6) witnessed the incident PW- 1 was present at the spot. Gangawwa was shifted to the hospital and she died in the hospital after two days. PW-6 another eyewitness examined has also stated that at about 8.00 p.m. she was returning to house of the deceased Gangawwa at Bandigani Cross form Banahatti, at that time, accused No.1 and accused No.2 had raised a quarrel with PW- 1. They were abusing PW- 1 stating that his mother has not made any effort to get a government house allotted in their favour. Both the accused assaulted PW- 1 with the coconut broom. Herself and Gangawwa went to the spot, at that time, accused No.1 kicked her and assaulted Oangawwa with borgadi sarpali on her head due to which Oangawwa sustained bleeding injury and she was shifted to the hospital. Gangawwa was not in a position to talk, Two days later, Gangawwa died in the hospital. 15. PW-2, doctor who conducted postmortem, in his examination-in-chief has stated that death might have been taken place 12-24 hours before postmortem examination. He has denied the suggestion that after 24-36 hours the colour of the blood will change to blue colour and from 36- 48 hours, the colour of the blood will become yellow and dark. PW-1 in the cross-examination has admitted that the police station is at a distance of 1 ½ kilometers from Koparade Hospital, Rabkavi where the deceased was first treated by PW-5. He has also admitted that since PW-5 was not ready to admit his mother, he told PW-5 that the deceased had suffered injury on her head due to fall. He has also admitted that there is a police station adjacent to Government Hospital at Rabkavi. He further admitted that there are several huts ne.ar the place of the incident an..d also admitted that he did not file the complaint immediately as his mother had asked him not to file a complaint. I 13 16. The evidence of PW-1, PW-4 and PW-6 suggest that initially there was a quarrel between the accused and PW- 1. When deceased went to the rescue of PW- 1, she was assaulted by borgadi that is an iron pulley used for drawing water form the well. No doubt, PW-2 has stated that the injury sustained by the deceased might have been caused by M.O. 1-pulley. PW- 1, the compliant Ex.P- 1 and also in his evidence, has stated that accused No.1 was abusing the deceased as the deceased has not secured a government house for them and it is on account of this, accused abused. Accused made an attempt to assault PW- 1, at that time, deceased came to the rescue of PW- 1, accused No.1 assaulted the deceased. Insofar as accused No.2 is concerned, except PW- 1 no other witness has stated that accused No.2 assaulted the PW- 1. PW- 1 though has stated that he was assaulted by the accused no.2 with hands, no corresponding injury is found nor medical report is produced. Except his oral testimony no other corroborative material is produced. The trial Court on considering the evidence of the eyewitnesses and evidence of the Doctors, held that the evidence of the eyewitnesses is truthful as they have seen the incident and have stated that accused No.1 14 assaulted the deceased. There is no reason to doubt the credibility of evidence of the direct witnesses. 17. PW-2 opined that the injuries might have been caused by use of M.O.1. Further the evidence of PW-1, PW-4 and PW-6 suggest that when accused No.1 was abusing, the deceased went to the rescue of PW- 1, at that time, in a quarrel, the accused No.1 assaulted the deceased. There was no premeditation or preparation. It was in a sudden quarrel, the incident took place. It is under these circumstances, the trial Court held that though the prosecution has proved that the accused has caused injury on the head of the deceased which resulted in her death and it is a homicidal death. However, the injury is caused in the quarrel and ensued on account of previous enmity of not getting a government house in favour of the accused. Though the evidence do not prove the charge of offence punishable under Section 302 of IPC, the prosecution has proved the offence punishable under Section 304 Part II of the IPC. 18. Learned Additional State Public Prosecutor submitted that no appeal has been filed by accused No.1 15 who is convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and he submitted that the trial Court has sentenced accused NO. I with 5 years rigorous rnprisonment. He further submitted that the accused were arrested on 18/07/2002 and they were enlarged on bail on 04/09/2002. Thereafter, on conviction, accused No.1 was taken into custody on 12/10/2004. Form 12/10/2004, accused No.1 must have served the sentence of 5 years rigorous imprisonment. 19. Considering the findings of the trial Court and the evidence on record, we find that the trial Court on proper appreciation of the evidence has passed the judgment. We find no error in the judgment of the trial Court. 20, Hence, we dismiss the appeal filed by the State. If accused No. 1 had already served the sentence, she shall be set at free lhrthwith. IT J tJ Li Li Sd/ JUDGE