The High Court of Karnataka dismissed the criminal appeal challenging the conviction for attempt to murder. The court held that the eyewitness testimony of the victim's wife, corroborated by medical records and the immediate FIR, was sufficient to sustain the conviction despite the lack of dying declaration or recovery of the murder weapon.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 7TH DAY OF SEPTEMBER 2018
BEFORE
THE HON’BLE MRS.JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.2601 OF 2010 (C)
BETWEEN:
SHIVANAND S/O.MADIVALAPPA KURESHINAVAR, AGE : 34 YEARS, R/O.LOKUR, TQ AND DIST-DHARWAD.
… APPELLANT
(BY SRI.K.L.PATIL, ADVOCATE)
AND
THE STATE OF KARNATAKA BY DHARWAD RURAL POLICE, REPRESENTED BY STATE PUBLIC PROSECUTOR.
….RESPONDENT
(BY SRI.PRAVEEN K.UPPAR, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 02.03.2010 BY THE LEARNED PRINCIPAL SESSIONS JUDGE, DHARWAD AT HUBLI IN S.C.NO.86 OF 2006, THERE BY CONVICTING THE APPELLANT FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 OF I.P.C. AND
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SENTENCING RIGOROUS IMPRISONMENTS FOR FIVE YEARS AND FINE OF RS.25,000/- WITH DEFAULT SENTENCE TO UNDERGO ONE YEAR.
THIS APPEAL COMING ON FOR HEARING , THIS DAY THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal of accused No.1 arises out of the Judgment and order of conviction and sentence dated 02.03.2010 passed by the Principal Sessions Judge, Dharwad in Sessions Case No.86 of 2006. By the impugned Judgment and Order the trial Court has acquitted the accused of the charge for the offence punishable under Sections 302 and 504 read with Section 34 of I.P.C and convicted the appellant/accused No.1 for the offence punishable under Section 307 of I.P.C. and sentenced him to rigorous imprisonment for five years and fine of Rs.25,000/-.
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Dharwad Rural Police in Crime No.75 of 2005 of their Police Station.
Accused No.1 was the elder brother of victim Gurupadappa. PW-1 is the wife of deceased Gurupadappa. Accused and deceased were living in different parts of the same house in Lokur village of Dharwad Taluka. There was dispute between the 1st accused and the deceased regarding sharing of the house in which they were residing. PW-1 was doing tailoring work and deceased was helping her in the same.
On 10.06.2005 at 4.30 p.m. PW-3, 10 and 16 the customers came to the house of the deceased to collect the clothes. The 1st accused objected for their entry into the house and tried to obstruct them. When Gurupadappa tried to pacify accused No.1, he assaulted Gurupadappa on his head with the axe M.O-4 causing grievous injuries. PW-1 on seeing incident raised the alarm. PW-4, 5 and 9 rushed to
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the spot. They shifted the injured to the Garag Primary Health Centre. There CW-13 Dr.Shashikant Kiragi initially treated the injured and issued M.L.C to Garag Police Station. On receipt of the MLC, PW-11 P.S.I. of Garag Police Station visited the hospital and recorded the statement of the victim as per Ex.P-7. On the basis of the said statement, he registered the F.I.R Ex.P-6. Then the victim was shifted to District Hospital, Dharwad and from there to K.I.M.S. Hospital, Hubballi. He was treated as inpatient in the said hospital from 10.06.2005 to 06.09.2005. After his discharge from the hospital, he died on 08.09.2005.
PW-19 conducted the further investigation, visited the spot and conducted the spot mahazar Ex.P-1. During the spot mahazar, he allegedly seized the axe M.O-4 in the presence of the pancha witness PW-2 Padeppa Basappa Bagalkoti. He recorded the statement of the witnesses, seized the bloodstained clothes of the deceased under the mahazar Ex.P-2,
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collected the wound certificate and filed the charge sheet.
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convicted and sentenced the 1st accused for the offence punishable under Section 307 of I.P.C. as aforesaid on the following grounds :
(i) The prosecution could not establish that the cause of death of Gurupadappa was the injuries inflicted by accused No.1, consequently the death is homicidal one.
(ii) Accused No.2 is implicated in the case subsequently by way of improvement and there is no material against her to substantiate the charges.
(iii) The 1st accused assaulting the deceased with the axe is proved by the evidence of eyewitness PW-1.
the evidence of P.W-4 and 5.
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seeks to assail the impugned judgment and order of conviction on the following grounds :
(a) The trial Court relied on the solitary witness
PW-1 stating that, her evidence/testimony is corroborated by the statement of the deceased Ex.P-7. At the same time, the trial Court holds that, Ex.P-7 does not amount to dying declaration. If, Ex.P-7 does not amount to dying declaration, then that is not admissible having regard to the bar under Section 162 of Cr.P.C.
(b) PW-1 is an eyewitness, as per Ex.P-7. There are improvements and embellishments in her evidence. Therefore trial Court was not justified in relying on her solitary evidence to place conviction.
(c) Except PW-1, the other alleged eyewitnesses namely PW-3, 10 and 16 did not support the prosecution case.
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(d) PW-4, 5 and 9 who allegedly shifted victim, also
did not support the prosecution case to implicate accused No.1.
in the evidence of witnesses.
(h) The above doubtful circumstances enure to the benefit of the accused. But the trial Court overlooked them.
(i) PW-1 states that, in the incident her clothes were also bloodstained, but I.O. does not seize the same.
the following judgments :
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that, PW-1 was the wife of deceased and themselves and accused were living in the separate parts of the same house.
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(c) Soon after the incident the victim was taken to the nearby Primary Health Centre at Garag. The evidence of PW-18 Dr.Rajeshwar Rudrappa Hallikeri coupled with Ex.P-16 Wound Certificate shows that the victim was brought to the hospital and soon after the incident his statement was recorded where the name of the appellant figured as the assailant. There was no scope for false implication.
(d) The evidence of PW-15 Dr.Krantikiran who treated the victim in the hospital and medical records Ex.P-13(a) show that the victim was treated in the hospital for about three months with the history of assault.
(e) The presence of PW-1 at the scene of occurrence is natural and soon after the incident her name has appeared in the medical records as the person who escorted the victim to the hospital and attended him all along. Therefore, there is no reason to disbelieve her testimony.
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(f) Though the eyewitnesses PW-3, 10 and 16 have turned hostile, PW-4, 5 and 9 the res gestae witnesses, PW-2 the spot mahazar witness deposed that accused No.1 and the deceased
were residing in different parts of the same house. PW-5 also deposed that, PW-1 was the wife of the deceased and she was residing with him. Thus, the evidence of PW-1 to the effect that the victim suffered the injuries in their house in Lokur Village and then he was shifted to Primary Health Centre, Garag was corroborated by the evidence of PW-2, 4 and 5.
(g) The evidence of PW-1 that she is the wife of deceased is corroborated by the evidence of PW-5
(h) When there is testimony of eyewitness, the circumstantial evidence regarding recovery of the weapon or bloodstained clothes becomes insignificant.
(i) Though F.I.R. is not substantial piece of evidence, it can be used for corroboration.
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the following judgments :
that arises for consideration is whether the impugned order of conviction and sentence of the appellant for the offence punishable under Section 307 of I.P.C is sustainable.
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the accused and the deceased were divided by a common passage.
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PW-4, 5 and 9 did not speak to the overt-acts of the accused. Therefore the question will be whether solitary evidence of PW-1 is acceptable. Acceptance of the evidence of PW-1 the eyewitness depends upon proof of her presence at the scene of occurrence and probability of her witnessing the incident.
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cohabitation with the deceased. PW-5 in the crossexamination stated that the deceased and PW-1 were living together and they have two children. The evidence of PW-1 and 5 regarding the cohabitation of PW-1 with the deceased could not be impeached in the cross-examination.
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the scene of occurrence is natural and probable, her solitary
evidence can be accepted. Nothing worth is elicited in her cross-examination to show that there was any animosity for her to falsely implicate the accused.
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that the trial court was not justified in relying on Ex.P-7 the statement of the deceased, despite holding that the same does not amount to dying declaration under Section 32 of the Indian Evidence Act. He contends that, once Ex.P-7 is not treated as dying declaration that assumes the form of statement under Section 161 of the Cr.P.C. and becomes inadmissible and unacceptable in evidence.
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of the statement Ex.P-7 he registered the FIR Ex.P-6. FIR is delivered to the Court within four hours of the victim visiting the hospital. Within that short span of time PW-11 had no scope for any concoction or manipulation.
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the delay of around three hours in shifting the victim from the scene of offence can not be blown out of proportion, more so when the medical records show that the victim had suffered grievous injuries.
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maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an afterthought. Since the examination of first informant was dispensed with by consent Ex.P-24, FIR became part of the prosecution evidence. Under Section 11 of the Evidence Act read with Section 6 the facts stated therein namely, PW 4 was not in a speaking condition, could be used only as a relevant fact of prior existing state of facts in issue as res gestae of “the earliest information”. It is not used to corroborate the prosecution case, but can be looked into as an earliest information of the existing condition of PW 4 at 9 a.m on June 5, 1984 i.e. when the report was given in Ex.P-24, PW 4 was still unconscious. When PW 4 had stated that he became unconscious as soon as he came and tapped on the door of DW 3, and fell down, by operation of Section 11 of the Evidence Act it may be relevant fact of the previous existing condition that PW 4 continued to remain unconscious till the report was given. Therefore, the FIR could be used as relevant existing state of fact namely the continuous unconscious condition of PW 4 till PW 5 SHO reached and saw him within the meaning of Section 11 read with Section 6 of the Evidence Act. When PW 4 received 7 gunshot injuries and one incised injury and ran for life to a distance with bleeding injuries, it would be quite likely that he would be under severe shock and his evidence that after reaching the home of DW 3 and knocking on
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the door he fell down unconscious appears to be quite natural and probable. The evidence of PW 5, that on seeking PW 4 in critical unconscious condition he sent him to the doctor for medical examination and the doctor administering sedation appear to be human probabilities and there is nothing intrinsic to suspect their evidence. Thus PW 4 was not in a fit condition to give statement till June 7, 1984 at 7 a.m. PW 4’s evidence that he was residing at Kotli Ablu and that he knew the accused was not disputed in the cross-examination. It is not uncommon in normal human probability that he was not expected to know the names of the relations of A-3. When A-1 and A-3 came in that very night to the shop and quarrelled for non-supply of liquor on credit, it would be fresh in the memory of PW 4 and as he saw the assailants he could have easily recognized A-3.”
(Emphasis Supplied)
counsel for the appellant, the eyewitness’s evidence was found improbable on the ground that signatures of the eyewitness on FIR as per his own evidence did not match with his signature on the summons issued by the Court. Similarly, in Inder Singh’s case the statement of the
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eyewitness was not accepted on the ground that same did not inspire confidence and that was found suspicious.
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the evidence of PW-1. There are no grounds to interfere with the impugned order of conviction and sentence. Therefore appeal is dismissed.
Appellant shall surrender before the trial Court within 10 days failing which trial court shall take steps to execute the conviction warrant.
Sd/JUDGE
CKK/-
3 issues framed by the court
Whether the solitary evidence of the eyewitness PW-1, corroborated by medical records and FIR, is sufficient to sustain the conviction.
Whether the statement recorded at the hospital can be used as relevant fact under Sections 6 and 11 of the Evidence Act to corroborate the eyewitness testimony.
Whether the exceptional circumstances allowed by the trial court to override the rule of corroboration in a solitary witness case are applicable on appeal.
Colour shows how this judgement treated each authority
Joseph v. State of KeralaDistinguished¶154
AIR 2003 SC 507 · Who else cites this
State of Haryana v. Inder Singh and Ors.Distinguished¶154
(2002) 9 SCC 537 · Who else cites this
D.Thamodaran v. Kandasamy and Ors.Overruled¶154
(2015) 16 SCC 758 · Who else cites this
Krishna Mochi and others v. State of BiharReferred¶146
AIR 2002 SC 1965 · Who else cites this
Dharam Pal and Others v. State of Uttar PradeshReferred¶146
(2008) 17 SCC 337 · Who else cites this
Malkiat Singh and Others v. State of PunjabExplained¶145
(1991) 4 SCC 341 · Who else cites this
7 provisions across 3 enactments
Shivanand
State of Karnataka
K.S. Mudagal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
