Bhimanna S/O Bharamu Chipparagi Vs the State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. 1973, PRAYING TO SECURE THE RECORDS IN SESSION CASE NO.393/2017 ON THE FILE OF THE 7^TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI SITTING AT CHIKKODI AND SET ASIDE THE JUDGMENT AND ORDER DATED 06.02.2023 AND ORDER OF CONVICTION ON SENTENCE DATED 07.02.2023 IN SESSION CASE NO. 393/2017 PASSED BY THE 7^TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI SITTING AT CHIKKODI, FOR OFFENCES PUNISHABLE UNDER SECTIONS 341, 302, AND 504 OF IPC AS NULL AND VOID AND TO ACQUIT THE APPELLANT BY ALLOWING THIS APPEAL.

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HC-KAR

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

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This appeal is directed against the judgment of conviction dated 06.02.2023 and order of sentence dated 07.02.2023 passed in Sessions Case No.393/2017 by the VII Addl. Sessions Judge, Belagavi, Sitting at Chikkodi (hereinafter referred to as the ‘learned Sessions Judge’), whereby the learned Sessions Judge convicted the accused for the offences punishable under Sections 341, 504 and 302 of IPC and sentenced him to undergo simple imprisonment for a period of one month and to pay a fine of Rs.500/-, in default of payment of fine, to undergo simple imprisonment for a period of five days for the offence punishable under Section 341 of IPC. He further sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,500/-, in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under Section 504 of IPC. The accused

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was also sentenced to undergo imprisonment for life and to pay fine of Rs.15,000/-, in default of payment of fine, to undergo simple imprisonment for a period of one year for the offence punishable under Section 302 of IPC. It is directed that all the substantive sentence shall run concurrently.

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Briefly stated, the facts of the case are as follows:

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The deceased-Annappa in the instant case is the husband of PW.3-complainant. The deceased-Annappa and accusedBhimanna Bharamu Chipparagi were working in a glass factory at Gujarat. The accused was addicted to alcohol. Later, on one day the accused sustained head injury during the course of his employment in the said glass factory. The deceased provided medical aid to the accused to recover from his injury. Thus, the deceased became close with the family of accused. As days passed, the accused started suspecting that the deceased had illicit affair with his wife. Thus on several occasions, the accused called the deceased and threatened him with dire consequence and threatened to kill him. On 18.07.2017, the deceased-Annappa and his wife-PW.3 along with their children had been to their native Jayasingpur and on the following day

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i.e., on 19.07.2017, the deceased and his wife were returning to their house on a motorcycle bearing Registration No.MH-09EN-3716 after visiting their land. Whey they reached near the land of accused, he stood in the middle of the road with an axe in hand and intercepted the motorcycle ridden by the deceased and abused him in filthy language and assaulted him on his head with the axe-M.O.3. As a result, the deceased and his wife-PW.3 fell on the road. Thereafter, accused gave repeated blows to the deceased with the axe. Though PW.3 attempted to rescue her husband, the accused angrily gazed at her. On hearing her grief and painfulness, PWs.7 and 8 came to the spot. The accused fled away from the spot after seeing PWs.7 and 8. Due to the assault, the deceased succumbed to the injuries on the spot. Later, PW.3 lodged the complaint against the accused before the respondent-Police as per Ex.P5 on the same day i.e., on 19.07.2017 at about 02:00 p.m. On the strength of Ex.P5, FIR came to be registered against the accused in Crime No.290/2017 dated 19.07.2017 for the offences punishable under Sections 302, 341 and 504 of IPC as per Ex.P12. Subsequently, Investigating Officer-PW.17 investigated the case by drawing relevant mahazars, recording

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the statement of witnesses and on obtaining necessary documents from the concerned authorities, laid the chargesheet against the accused before the committal Court for the aforementioned offences.

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Post committal of the case before the Sessions Court, the learned Sessions Judge framed charges against the accused for the aforementioned offences and the same was read over to him. However, the accused denied the charges leveled against him and claimed to be tried.

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In order to prove the charges leveled against the accused, the prosecution in total examined 21 witnesses as PW.1 to PW.21, marked 25 documents as Ex.P1 to Ex.P25 and identified 11 material objects as M.O.1 to M.O.11.

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On completion of the prosecution evidence, the learned Sessions Judge read over the incriminating evidence of material witnesses to the accused as stipulated in Section 313 of Cr.P.C. However, the accused denied the same. His defence was that he was falsely implicated.

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Following the assessment of oral and documentary evidence, the learned Sessions Judge convicted the appellant/accused for the charges leveled against him and sentenced him as stated supra. The said judgment of conviction and order of sentence is challenged in this appeal.

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We have heard the learned counsel Sri. Raghavendra A. Purohit for the appellant and learned Addl. SPP Sri. A.M.Gundawade for the respondent-State. We have also perused the records made available before us.

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The primary contention of the learned counsel for the appellant is that the judgment of conviction and order of sentence passed by the Sessions Court suffers from perversity and illegality and the learned Sessions Judge has grossly erred while convicting the accused without duly appreciating the evidence and documents placed before him. He contended that except the interested version of PW.3 no other reliable evidence is adduced to prove the charges leveled against the accused. PW.3 the wife of deceased claimed to be an eyewitness to the incident is not the author of complaint-Ex.P5. In such circumstances, a doubt arises about the genesis of the crime.

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According to the learned counsel, PW.3 is a planted witness and there are major discrepancies in her evidence. Further, absolutely there is no corroborative evidence to the testimony of PW.3 available on record except the evidence of Investigating Officer-PW.17. In such circumstances, the sole testimony of PW.3 cannot be the basis for conviction. Additionally, he contended, the prosecution utterly failed to prove the motive for the incident, recovery of the weapon used for the commission of crime and the alleged spot of incident. All these lacunas in the prosecution case are not properly appreciated by the learned Sessions Judge. Accordingly, he prays to allow the appeal.

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Per contra , the learned Addl. SPP for the respondent-State contended that, judgment under this appeal neither suffers from perversity nor illegality as the learned Sessions Judge has meticulously examined the evidence on record and passed a well-reasoned judgment which does not call for any interference by this Court. He submitted that PW.3 being the wife of deceased has witnessed the incident and lodged the complaint soon after the incident through PW.13, she reiterated the assertion made in the complaint in her

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evidence and she clearly withstood the test of crossexamination. Hence, her evidence remained unchallenged. He further contended that, PWs.7 and 8 being the relatives of accused and deceased, partly supported the case of prosecution and deposed that immediately after the incident they have visited the spot of incident and seen the dead body of the deceased. Hence, their evidence also corroborates the testimony of PW.3 to the extent that the alleged incident occurred in the land of accused as stated by PW.3. Additionally, the learned Addl. SPP contended that, the weapon M.O.3-Axe used for commission of crime seized at the instance of accused and sent for chemical examination by the PW.17-Investigating Officer. The said FSL report marked at Ex.P23 which depicts that the same was stained with human blood with ‘AB’ blood group. In such circumstance, the prosecution has successfully proved the charges leveled against the accused beyond all reasonable doubt. Accordingly, he prays to dismiss the appeal.

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Having heard the learned counsel for the respective parties and also on perusal of the entire evidence on record including the impugned judgment, the following points arise for our consideration:

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i. Whether the judgment under this appeal suffers from either perversity or illegality?

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ii . Whether the learned Sessions Judge is justified in convicting the accused for the offences punishable under Sections 341, 504 and 302 of IPC?

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In order to prove the homicidal death of the deceased, the prosecution predominantly relied on the evidence of PW.18-Doctor who conducted the autopsy on the body of the deceased by issuing postmortem report as per Ex.P22. On careful perusal of Ex.P22, the Doctor opined that the cause of death is due to ‘head injury sustained’. This apart, he stated all the injuries sustained by the deceased are ante-mortem in nature. Further, the prosecution also relied on Ex.P1-inquest panchanama drawn on the dead body by PW.17-Investigating Officer. PWs.1 and 2 are the witnesses for the same and identified the injuries on the dead body. Hence, on a collective reading of the evidence of PWs.17 and 18 coupled with Exs.P1 and P22, we are of the view that the prosecution has proved the homicidal death of the deceased. Even otherwise, the defence has not seriously disputed the homicidal death of the deceased.

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To connect the accused with homicidal death of the deceased, the prosecution significantly relied on the evidence of PWs.3, 6, 7 and Investigating Officer-PW.17. On careful perusal of the evidence of these witnesses, PW.3-wife of the deceased set the criminal law into motion by lodging complaint-Ex.P5. On careful analysis of her evidence, she categorically stated that the accused was working along with the deceased in a glass factory at Gujarat. He was addicted to bad vices and was removed from the job. Later, he returned to his native village. However, accused was suspecting that the deceased had illicit affair with his wife. Owing to the said ill-will, he threatened the deceased with dire consequence on several occasions. Later, on 18.07.2017, PW.3 and her husband visited their native and on the following day while they were returning from Jayasingpur and when they reached the land of accused, the accused assaulted the deceased with axe-M.O.3 on his head and murdered him. This testimony of PW.3 clearly corroborates the contents of her complaint-Ex.P5. As discussed supra, the complaint was lodged by her soon after the incident. Though the defence counsel cross-examined this witness at length, nothing worthwhile was elicited from her to discredit her

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testimony. Nonetheless, the evidence of this witness corroborates the medical evidence i.e., the evidence of PW.18Doctor who conducted the autopsy and issued the postmortem report as per Ex.P22. PW.3 stated in her evidence that the accused assaulted her husband with axe on his head repeatedly. The injuries mentioned in the postmortem shows that the deceased sustained head injuries and succumbed to the same. As rightly contended by the learned Addl. SPP, PWs.6 and 7 partially supported the case of prosecution to the extent that the incident in-question was committed in the land of accused as deposed by PW.3 and as per the contents of Ex.P2-spot mahazar. No doubt, the other material witnesses turned hostile to the prosecution case by denying their statement recorded under Section 161 of Cr.P.C. However, the testimony of PW.3 clearly corroborates the evidence of Investigating Officer-PW.17. We have endeavored to test the testimony of PW.3 from all angles and we find that the same is free from contradictions, inconsistencies, exaggerations and embellishments. Hence, there is no reason to discard the evidence of PW.3.

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It is also argued by the learned counsel for the appellant that, PWs.3, 6 and 7 are the relatives of the deceased and they are partisan witnesses and as such their evidence cannot be considered. However, the Hon’ble Apex Court in the case of Ravasahebgouda Alias Ravasahebgouda v. State of Karnataka reported in (2023) 5 SCC 391 , held in Paragraph No.17 as under:

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" 17 . “It is clear that it is the quality and not the quantity of the witnesses that matters. Further in Paragraph No.25 of the said judgment, it is stated that “a witness being a close relative is not a ground enough to reject his/her testimony. Mechanical rejection of an even “partisan” or “interested” witness may lead to failure of justice. The principle of “falsus in uno, falsus in omnibus” is not one of the general applications”.

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There is no reason or material on record to compel this Court to take a view that PW.3-Laxmi did not really witness the assault on the deceased by the accused. As discussed supra, she was subjected to intense and extensive crossexamination by the defence, yet her testimony could not be shaken materially. There are no material contradictions between the complaint-Ex.P5 lodged by her and her evidence before the Court. A careful analysis of the testimony of PW.3

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shows that, her narration of the incident was natural and trustworthy. PW.13 the scribe of Ex.P5 also stated similarly. Hence, we do not see any reason why PW.3 should falsely implicate the accused without any rhyme or reason, more so, when apparently there was no previous animosity with the accused.

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The Hon’ble Apex Court in the case of Ganapathi v. State of T.N. , reported in (2018) 5 SCC 549 held in paragraph Nos.13 and 14 as under:

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“ 13. The evidence of ocular witnesses, PWs 1 and 2, father and brother of the deceased, clearly exhibits the way in which the accused took away the life of deceased Murugan. Their evidence narrates the guilt of the accused beyond reasonable doubt and corroborates with that of the medical evidence. Dr Danraj (PW 12) who conducted the post-mortem on the body of deceased Murugan, had pointed out as many as 10 cut injuries out of which Injuries 1, 2, 5, 6, 7, 8, 9 and 10 are fatal which were possible by sickle and capable of causing death whereas Injuries 7 and 9 were possible by knife. It appears that there were two independent witnesses (PWs 5 and 6) projected by the prosecution, but they have turned hostile. In several cases, only the family members are present at the time of incident, then the case of the prosecution will be based only on their evidence. When their evidence is the only evidence available, the courts should be cautious and meticulously evaluate the evidence in the process of trial and we are not able to appreciate the contention on behalf

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of the accused that the non-examination of independent witnesses and conviction based on the evidence of family members is fatal to the case of the prosecution.

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14. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”.”

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Applying the above findings to the instant case, the

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evidence of PWs.3, 6 and 7 cannot be discarded merely for the

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reason that they are the family members of the deceased.

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It is settled position of law that the evidence of a solitary eyewitness is sufficient to sustain a conviction, if the said evidence inspires the confidence of the Court. In the instant case the evidence of PW.3 is trustworthy and free from all contradictions. The prosecution has also proved that the weapon-M.O.3 used for the commission of crime was recovered at the instance of accused and the same is identified by PW.3. The Doctor who conducted the autopsy has opined that the injuries found in the dead body could be caused by MO.3-Axe. PW.17-Investigating Officer sent M.O.3 for chemical

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examination and the report of FSL-Ex.P23 reveals that the same was stained with human blood group of ‘AB+’. In such circumstance, the oral testimony of PW.3 clearly corroborates with the medical and scientific evidence.

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On overall appreciation of the evidence of record, we are of the view that the prosecution has proved the charges leveled against the accused beyond all reasonable doubt. Hence, interference with the impugned judgment is not called for. Accordingly, we answer point No.1 raised above in the negative and point No.2 in the affirmative and proceed to pass the following.

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ORDER

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The Criminal Appeal No.100366/2023 is hereby dismissed.

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SD/(R.NATARAJ) JUDGE

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SD/(RAJESH RAI K) JUDGE

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HKV CT:PA

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List No.: 2 Sl No.: 7

Bhimanna S/O Bharamu Chipparagi v. the State of Karnataka

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Bhimanna S/O Bharamu Chipparagi v. the State of Karnataka

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