Dismissed

State of Karnataka v. Hukrappa

Karnataka HC18 Jul 2024CRL.A/2167/2017

Case brief

AI extract

What is this about?

In an appeal against acquittal under Section 307 IPC, the High Court of Karnataka examined whether the trial court erred in acquitting the accused. The Court found significant doubts regarding prosecution evidence, including witness inconsistencies, suppression of medical records, and lack of forensic corroboration. The appeal was dismissed, upholding the acquittal and lesser conviction.

What did the court decide?

The Criminal Appeal filed by the State was dismissed. The acquittal of the respondent on the charge of attempting to murder was maintained.

State of Karnataka Vs Hukrappa — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:27957-DB CRL.A No.2167/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JULY, 2024

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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CRIMINAL APPEAL NO.2167/2017 (A)

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BETWEEN:

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STATE OF KARNATAKA BY THE SUB-INSPECTOR OF POLICE SUBRAMANYA POLICE STATION REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001 …APPELLANT

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(BY SRI RAJAT SUBRAMANYA, HCGP)

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AND:

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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HUKRAPPA S/O DOOJA AGED ABOUT 31 YEARS R/AT KANKAL HOUSE KENYA VILLAGE SULLIA TALUK – 574 239 …RESPONDENT

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(BY SRI ANIL KUMAR D, FOR SRI THEJAS RAI K, ADVOCATES)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 20.03.2017 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU, SITTING AT PUTTUR, D.K. IN S.C.NO.5009/2014 THEREBY ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 OF IPC ETC.

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THIS CRIMINAL APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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“Whether the impugned judgment and order of acquittal in S.C.No.5009/2014 passed by the V Additional District & Sessions Judge, D.K., Mangalore, sitting at Puttur, D.K. suffers patent illegality or perversity?” is the question involved in this case.

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The respondent was tried in S.C.No.5009/2014 for the charge for the offence punishable under Section 307 of IPC on the basis of the charge sheet filed by Subramanya police in Crime No.31/2013 of their police station. He was the sole accused in that case. PW.1 is the wife of victim PW.2 and sister of accused. PW.3 is the daughter of PWs.1 and 2. PW.4 is the sister of PW.2. DW.1 Honnamma is the mother of the accused and the accused is the brother of PW.1. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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The case of the prosecution in brief is as follows:

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There was dispute between the accused and PW.2 in the

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matter of PW.1 demanding her share in the properties of her parental family. On 21.04.2013, PWs.1 and 2 had come to the house of the accused situated at Kankal village, within the limits

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of Subramanya police station. At 4.00 p.m. when PW.1, DW.1,

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the accused and PW.2 were talking to each other, the accused picked up quarrel with PW.2 for silly reasons asserting that he will kill PW.2, assaulted on his head with MO.1 Axe and caused him grievous injuries. Thereby the accused attempted to commit murder of PW.2.

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Regarding the incident, PW.1 filed the complaint as per Ex.P1. Based on that, PW.9 registered first information report as per Ex.P12 against the accused. PW.11 on conducting investigation filed the charge sheet.

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The trial Court on hearing the parties, framed the charge against the accused for the offence punishable under Section 307 of IPC. The accused denied the charges and claimed trial. Therefore the trial was conducted.

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In support of the case of the prosecution, PWs.1 to 14 were examined and Exs.P1 to P13 and MOs.1 to 4 were marked. After his examination under Section 313 of Cr.P.C., the accused examined his mother as DW.1 and no documents were produced on his behalf.

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The trial Court on hearing the parties, by the impugned judgment and order acquitted the accused of the charge under Section 307 of IPC, convicted him for the lesser offence punishable under Section 324 of IPC and released him extending the benefit of provisions of the Probation of Offenders Act, 1958 (‘PO Act’ for short). Challenging the said judgment of acquittal, the State has preferred this appeal.

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Sri Rajat Subramanya, learned HCGP reiterating the grounds of appeal submits that PW.2 the injured witness clearly deposed about the overt acts of the accused. The same was corroborated by the evidence of PW.3 another eyewitness to the incident, medical evidence and other evidence on record. He submits that the trial Court was in serious error in disbelieving the evidence of the injured eyewitness. Hence, he submits that the impugned judgment and order is liable to be set aside and the accused be convicted.

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Per contra Sri Anil Kumar.D., learned Counsel for the accused justifies the impugned judgment and order and submits that there is inordinate delay in filing the complaint and the same was not explained. Though it was alleged that the victim was first taken to Puttur Hospital, the said hospital documents

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were suppressed. MLC intimation was said to be issued on

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23.04.2013. The MLC intimation should have been issued by first hospital. Ex.P7 which was allegedly issued by Wenlock Hospital was manipulated one. PW.1 the complainant is none else wife of PW.2, she did not support the prosecution case. PW.3 being child witness her evidence has to be cautiously evaluated as there is scope for tutoring. The evidence of PW.1 clearly supports the defence of the accused that at the time of the incident, both the accused and PW.2 were intoxicated, under such intoxication, they fought for some silly reason and in that scuffle PW.2 fell on the sharp edged weapon and suffered injuries. The Doctor of Puttur Hospital was not examined. The trial Court considering such circumstances has rightly acquitted the accused. The impugned judgment and order does not suffer any perversity, illegality or arbitrariness etc., therefore the same cannot be set aside.

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Analysis

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This is an appeal against the order of acquittal. The

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Hon’ble Supreme Court in the judgment in Prem Singh v. State of Haryana¹ has held that in an appeal against the order of acquittal, the scope of interference is limited, unless it is shown

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1 (2013) 14 SCC 88

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that the impugned judgment and order of acquittal suffers

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patent illegality or perversity, the Appellate Court cannot interfere with such judgment. It is further held that merely because two views are possible the acquittal judgment cannot be reversed, in such case the view favourable to the accused has to be considered. By order of acquittal, the accused has double benefit namely the presumption of innocence which is available to the accused in the trial, secondly which is reinforced by the order of acquittal. Therefore this Court has to examine this matter in the light of the aforesaid judgment of the Hon’ble Supreme Court.

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The relationship between the accused, PWs.1 to 4 and DW.1 is not in dispute. The accused also does not dispute that PW.2 suffered injuries as shown in the wound certificate Ex.P4 in his house. The defence of the accused is that at the time of the incident, both the accused and PW.1 were intoxicated and under intoxication, they quarreled with each other for silly reason and in that scuffle PW.2 fell on sharp edged weapon and suffered those injuries.

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Therefore the only question is whether the prosecution has established by cogent and consistent evidence

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that PW.2 suffered injuries as shown in Ex.P4 due to the assault

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by the accused.

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It is no doubt true that PW.6 the doctor of Wenlock Hospital, Mangalore, states that during the intervening night of 21/22.04.2013, PWs.1 and 2 had come to their hospital with history of assault by the accused on 21.04.2013 at 4.00 p.m. in Puttur. Whereas in the complaint Ex.P1 said to be given by PW.1 before PW.13 when PW.2 was undergoing treatment in Wenlock hospital, it is stated that PW.2 was assaulted by the accused in the house of DW.1 in Kankal village. PW.13 says that on 22.04.2013 at 2.30 p.m. when he was in town on the instructions of his higher officer, he visited Wenlock hospital to record the statement of PW.2. He found that PW.2 was not in a position to give the statement. Therefore he recorded the statement of PW.1 as per Ex.P1 on 22.04.2013 between 7.00 p.m. to 7.45 p.m. and returned to the police station on 23.04.2013 at 6.15 a.m. and produced the statement before PW.9 Therefore there is material variance between the statement allegedly given by PWs.1 and 2 before PW.6 and in the complaint Ex.P1 regarding the place of offence.

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Further PW.1 who gave the complaint, though in

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chief examination said that the accused assaulted her husband PW.2, in her cross-examination admitted that PW.2 and the accused were in the habit of consuming intoxicating substance. She further admitted that her husband was admitted to de-addiction centre to overcome his addiction to alcohol. She further admitted that both PW.2 and the accused were intoxicated and for silly reason, scuffle took place, PW.2 fell down on the sharp edged weapon and suffered injuries. She admitted that she has not given statement before the police that the accused has assaulted her husband with MO.1 and she does not know the contents of Ex.P1. Though she was crossexamined by learned Public Prosecutor, nothing worth was elicited to show that she has deliberately turned hostile or she will be benefited in any way by taking the side of the accused, more particularly when the victim PW.2 himself was her husband and he had suffered injuries.

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The other material aspect which is to be noted is that PWs.1 to 3 have stated that after the incident, PW.2 was taken to Wenlock Hospital. But the evidence of PW.6 the doctor who treated PW.2 in Wenlock hospital and Ex.P4 wound certificate show that the victim was first taken to Puttur

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Hospital. PW.6 in his cross-examination admits that PW.2 was

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treated by another doctor. He further admits that in Ex.P4 he has opined that the opinion regarding medical information has to be taken from the doctor of Puttur Government Hospital where PW.2 was first treated. His evidence shows that he was neither Casualty Medical Officer nor the doctor who treated PW.2. Therefore history allegedly recorded in Ex.P4 showing the accused as assailant is not free from doubts.

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So far as PW.3, she herself states that she is student. While giving evidence as on 07.11.2016 was aged 13 years. The incident has taken place on 21.04.2013. Therefore as on the date of the incident, she must have been aged less than 10 years. Her presence at the scene of offence at the time of the incident is not mentioned and her name is not forthcoming in Ex.P1 the first information. Moreover, PW.1 has disowned that complaint though PW.2 is the injured.

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It is no doubt true that the injured eyewitness stands on higher pedestal and his evidence shall not be lightly discarded. It is no doubt true that PW.2 injured witness supported the prosecution version. But according to PWs.1 to 3, PW.2 was taken to Wenlock hospital, but prosecution’s own

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evidence i.e. the evidence of PW.6 and Ex.P4 tell otherwise.

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According to that evidence, the victim was first taken to Puttur Government Hospital. Though PW.6 denied the defence theory of PW.2 suffering such injuries accidentally, PW.1 who is none else but wife of PW2 admitted such suggestions.

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Had the records of Puttur Government Hospital were produced and the doctor who treated him in that hospital was examined, the history given at the said hospital could have come to light. Therefore that is a material document. Suppression of such material document leads to inference that, if produced that was going against the prosecution’s case. Therefore the evidence of PW.2 needed corroboration. PW.1 did not corroborate his evidence. PW.3 the daughter of PWs.1 and 2 though supported her presence at the scene of offence at the relevant time, becomes doubtful as her name is not forthcoming in the first information report. Consequently her version that PW.1 was taken directly to Wenlock Hospital shows that there was attempt to suppress the material fact. Therefore her evidence is covered with shadow of doubt.

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PW.4 was not the eyewitness to the incident. Her evidence was hearsay evidence. She says that PW.3 informed

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her over phone at 4.15 p.m. on 21.04.2013 that the accused

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assaulted PW.2 under intoxication. But in her cross-examination she admits that her deposition in chief examination to that effect is at the behest of PW.3. The evidence of PW.4 shows that she came to know that PW.1 and DW.1 had shifted PW.2 in 108 Ambulance to Wenlock Hospital which is contrary to Ex.P4 and the evidence of PW.6. They do not mention anything about PW.4 accompanying victim to the hospital. Though property dispute was said to be the motive for the offence, PW.4 in her crossexamination states that she does not know whether PW.2 demanded any property from the accused. She further states that the accused never proclaimed that, if PW.2 comes to his house he will kill him, thereby the motive circumstance also fails. Even otherwise, motive is a double edged weapon that may be used against the accused by victim or by the complainant party personally to implicate the accused.

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20. Other circumstance relied on by the prosecution is

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recovery of MO.1 axe under Ex.P11 at the instance of the accused. PW.14 says that on 02.05.2013 he arrested the accused and accused volunteered to show place where MO.1 was concealed and led him and the panchas PWs.8 and 12 to a coconut tree near the scene of offence, took MO.1 and produced

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the same and that was seized under the mahazar Ex.P11. PW.8

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the alleged witness to the proceeding under mahazar Ex.P11, in para 2 of his chief examination says that the accused had told before the police that he will show the axe, the police took him and the accused from his shop to the house of DW.1 and took out the weapon from bottom of coconut tree situated near the house of Duja (father of the accused) and produced the same and the same was seized under mahazar Ex.P11. But in his cross-examination, he says that when the accused was with the police, the police took him, he has not witnessed the conversation between the police and the accused. He stated that he did not see at what depth MO.1 was kept under the tree. He further says that because the weapon was in the hands of the police, he came to know that it was axe, he did not see whether MO.1 had any blood stains or not. Such admission of PW.8 creates doubt about the evidence of PW.14 that the accused gave the voluntary statement before him to produce the weapon and that was seized under mahazar Ex.P11.

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Ex.P11 itself shows the place where MO.1 was allegedly recovered was surrounded by cow shed, the house of the accused and another house. Thus the place from where MO.1 was allegedly seized was accessible to others. The incident

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was on 21.04.2013 and the alleged seizure was on 02.05.2013,

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therefore the above evidence creates doubt about the accused concealing the weapon and seizure of the same at the instance of the accused as alleged.

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As per the prosecution, on the accused assaulting PW.2 with MO.1 that was stained with blood, the same was sent to FSL examination. First of all seizure of MO.1 is not proved beyond reasonable doubt. Even otherwise, as per Ex.P3, RFSL report, the blood group could not be determined as its results were inconclusive. Therefore that was of no help to the prosecution to connect the accused to the weapon and consequently to the crime.

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Taking into consideration the evidence of PW.1 and DW.1 that PW.2 suffered injuries due to fall on a sharp edged object in a scuffle between him and the accused, the trial Court acquitted him for the offence punishable under Section 307 of IPC, convicted him for the offence punishable under Section 324 of IPC and applying Section 4 of PO Act released him. The injury was allegedly suffered under intoxication and no motive was imputed to the accused. Therefore, even Section 324 of IPC could not have been applied to the accused. However accused

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has not preferred any appeal against such judgment. Further

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during the period of probation, there were no allegations of the accused involving in any unlawful activities or criminal activities.

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Under the circumstances, there are no grounds to interfere with

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the impugned judgment and order. Hence, the following:

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ORDER

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The appeal is dismissed.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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KSR

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List No.: 1 Sl No.: 5

State of Karnataka v. Hukrappa

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Hukrappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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