Nataraju Vs the State of Karnataka

THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 13.02.2017 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU IN S.C.NO.50/2016 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 326 OF IPC.

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

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE M.G.S. KAMAL

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This appeal is against the judgment and order dated 13.02.2017 passed in Special Case No.50/2016 on the file of II Additional District and Sessions Judge, Tumakuru (trial Court), by which the appellant herein has been convicted for the offences punishable under Sections 302 and 326 of Indian Penal Code and has been sentenced to undergo seven years rigorous imprisonment for the offence punishable under Section 326 of IPC and to pay a fine of Rs.15,000/- and in default of payment of fine to undergo rigorous imprisonment for about six months. He has been further sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302 of Indian Penal Code and to pay fine of Rs.20,000/-.

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The case of prosecution is that appellant-accused is the brother of one Nagaraju - PW1. Deceased Smt.Mangalagauramma is the wife of PW1. Injured PW2- Usha Rani was the daughter of PW1 and the victim. That at about 12.30 p.m. on 07.02.2016 the appellant-accused had picked up a quarrel with PW1 with regard to partition of family properties.

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That PW1 to avoid the conflict went away from the spot and later when he returned home at about 3.30 p.m., he witnessed the appellant-accused assaulting his wife namely Smt.Mangalagauramma with machete on her head and neck. When his daughter Usha Rani-PW2 tried to prevent, appellantaccused assaulted her with the machete resulting in fracture of her left hand. That when PW1 tried to intervene appellantaccused attempted to assault PW1 as such he escaped. The appellant-accused went to the police station with the machete. PW1's wife succumbed to the injuries at T.H.S Hospital, Tumakuru.

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Based on the complaint of PW1, C.S.Pura police had registered case in Crime No.19/2016 for the offences punishable under Sections 302 and 326 of IPC. After completion of the investigation a charge sheet was filed, charges were framed for the said offences. Since the appellant pleaded not guilty, he was tried.

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Prosecution examined 13 witnesses as PW1 to PW13 and marked 16 documents as Ex.P1 to Ex.P16 and M.Os.1 to 7.

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Statement under Section 313 of Cr.P.C. was recorded. The

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trial Court framed the following points for its consideration:

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Whether the prosecution has proved beyond reasonable all doubt that death of Mangalagowramma is a homicidal death?

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Whether the prosecution proves beyond all reasonable doubt that on 07.02.2016 at about 3.30 p.m. at C.S.Pura Village, Gubbi Taluk, accused did commit murder by intentionally causing the death of Smt.Mangalagowramma and thereby committed an offence punishable under Section 302 of the Indian Penal Code?

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Whether the prosecution proves beyond all reasonable doubt that accused on 07.02.2016 at about 3.30 p.m. at C.S. Pura Village, Gubbi Taluk and voluntarily caused grievous hurt to CW2 by dangerous weapon namely chopper and thereby committed an offence punishable under Section 326 of Indian Penal Code?

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On appreciation of evidence, the trial court answered the aforesaid points in the affirmative and consequently convicted and sentenced the appellant as noted above. Being aggrieved by the same, the appellant is before this Court.

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Sri.N.S.Sampangi Ramaiah, learned Amicus Curiae for appellant reiterating the grounds urged in the appeal memorandum submitted that the prosecution has not established the motive attributed to the appellant beyond

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reasonable doubt and in the absence of the prosecution establishing the motive circumstances, the appellant cannot be held guilty of the offences charged. That the author of wound certificate at Ex.P12 has not been examined. That mere production of the document would not be sufficient to convict the appellant of the offence punishable under Section 326 of IPC. That merely based on the evidence of child witness PW2, the trial Court ought not to have convicted the appellant particularly when the recording of her evidence is contrary to the principles of law governing the same. He further submits at the most the case of the prosecution may fall within the provisions of Section 304 of IPC as the same appears to have occurred under grave provocation. As such conviction and sentencing the appellant for life requires interference.

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Learned SPP-II justifying the judgment and order of the trial Court submitted that the case of the prosecution is based on direct evidence. That nothing has been elicited from the said witnesses to discredit the case of the prosecution. That when the case involves direct evidence, the motive circumstances becomes insignificant. He submits that there is

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no dispute of the fact that the death is homicidal due to the injuries inflicted by the appellant on the victim by use of the weapon. The evidence of the child witness has been recorded by the Sessions Court strictly in accordance with the provision governing the same. He submits that the case of the appellant would not fall even under the exception contemplated under Section 300 of IPC inasmuch as the extent to which the injuries are inflicted would not give any scope for consideration of the case of the appellant even under Section 304 of IPC. Hence, seeks for dismissal of the appeal.

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Heard both side. Perused the records.

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Evidence of the prosecution:

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PW1 is the husband of the victim and brother of the appellant-accused. In his deposition he has reiterated the contents of the complaint at Ex.P1. He has also spoken about his presence and he being attacked by the appellant and he escaping from the scene of offence. He has also spoken about drawing up of the spot mahazar as per Ex.P2 and recovery of blood stained mud and plain mud as per MO.1 and MO.2 by the

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respondent-police. Nothing has been elicited in the cross examination to discredit the deposition of the said witness.

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PW2 is daughter of PW1 and the victim and she was

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aged about 12 years at the time of incident. She has reiterated the complaint averments and also stated that on 07.02.2016 appellant-accused who had come about 10 days prior to the date of incident from Bengaluru, had picked up quarrel with her father-PW1 for he not having been given share in the property. That when PW1 went out, the appellant-accused, victim and PW2 were at home. That victim and PW2 were washing the clothes outside their home. At that time appellant-accused picked up the quarrel with the victim insisting her to get his share from her husband by using foul language, to which the victim had replied that it was the issue between the brothers and she would not intervene. Thereafter, appellant-accused went inside the house, came out with a machete and assaulted the victim on her head and neck and caught hold of her hair dragged her outside the house and again continued assaulting her. When PW2 tried to prevent the attack the appellantaccused assaulted PW2 on her left hand resulting in her

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fracture. Just then PW1 her father came to the spot appellantaccused attempted to assault him but he escaped. Thereafter, CW3 to CW6 came to the spot. Appellant-accused went to the police station with a machete. CW3 to CW6 took PW2 and her mother to C.S. Pura hospital, where they were asked to be taken to T.H.S hospital at Tumakuru. That her mother was declared dead at T.H.S hospital. PW2 was taken to Aditya Hospital for her treatment, where it was informed that a rod has to be inserted. The said witness has identified the machete and the clothes worn by the appellant-accused and victim, which were already marked MO.3, MOs.5 to 7 respectively. Nothing has been elicited in cross-examination to discredit the deposition of PW2.

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PW3-Venkatalakshmi, the relative of PW1, PW2, and the victim has also spoken about she having witnessed appellant-accused assaulting victim-Mangalagowramma with machete on her head and neck. She also deposed about she witnessing appellant-accused assaulting PW2 on her hand. She

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has deposed with regard to presence of CW4 to CW6 and taking victim and PW2 to the hospital in the ambulance. She

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has also identified MO.3-Machete and the clothes worn by the appellant-accused and victim. Nothing has been elicited in the cross examination of said witness to discredit her evidence.

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PW4-Bhoomesh is the brother of victimMangalagauramma. He has spoken about he going to the spot after hearing the screaming of the victim by which time the appellant was assaulting the victim on her head and neck with machete and also causing injury to PW2 on her hand, when she tried to intervene. He has also spoken about the presence of CW3 to CW6. He has also spoken about the appellant-accused trying to assault PW1 who came later to the spot. That the accused had gone to police station with a machete in his hand. The said witness has spoken about he along with CW3 to CW6 taking the victim and PW2 to the hospital for treatment. The said witness is the signatory to the seizure mahazar-Ex.P3 under which the clothes worn by Mangalagauramma were seized by the police as per MOs.5 to 7. Nothing has been elicited to discredit the evidence of the said witness. He has also identified the machete-M.O.3 and the clothes worn by the appellant-accused.

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PW5-Raghuvaiah is another witness who has spoken

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about he having seen the appellant-accused attacking the victim and PW2. That he resides in the third house from the house of PW1. He has also spoken about the presence of CW3 and CW4 and taking victim and PW2 to the hospital. He has identified the machete, clothes worn by the victim and appellant-accused which is marked as MO.3 and MOs.5 to 7 respectively. In the cross examination, he has deposed that house of PW1 and his house is situated within the distance of 10 metres. Nothing is elicited to discredit the deposition of the said witness.

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PW6 is the witness to seizure mahazar-Ex.P4 under which machete and blood stained shirt of the appellant-accused were seized in the police station which is marked as M.O.3 and M.O.4 respectively.

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PW7 is also witness to seizure mahazar-Ex.P3 which was drawn while seizing the clothes of the victim marked as MOs.5 to 7.

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PW8 is a witness to inquest mahazar as per Ex.P6. He

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has spoken about clothes of victim as per M.Os.5 to 7.

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PW.10-Krishnan Nair who is the Assistant Engineer,

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has spoken about he preparing the spot sketch as per Ex.P7.

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Medical evidence:

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Dr. S. Rudramurthy-PW11 who has conducted the post mortem of deceased-Smt. Mangalagauramma, he has spoken about the injuries found on the dead body of the deceased. The following are the 12 external injuries found on the body of the deceased:

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"The following external injuries were noted.

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1. Incise wound measuring 0.5X0.1 cm present above right eye brow and obliquely placed.

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2. Chop wound measuring 5X0.2 cm x underlying bone cut fractured present over right and frontal aspect of head and vertically placed.

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3. Chop wound measuring 5X1 cm x underlying bone cut fracture present over the left and frontal aspect of head and vertically placed.

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4. Chop wound measuring 4X1 cm x underlying bone cut fracture present below previous injury and obliquely placed.

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5. Chop wound measuring 5X1 cm x underlying bone cut fracture present over left and top of head and vertically placed.

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6. Chop wound measuring 3X1 cm x underlying bone cut fracture present over back of head and vertically placed.

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7. Chop wound measuring 3X1 cm and 3X0.5 cm with underlying bone fracture present below previous injury and horizontally placed.

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8. Chop wound measuring 4X1 cm x bone deep present over back and left side of head and obliquely placed.

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9. Incised wound horizontally placed present over the frontal aspect of neck measuring 14 cmX0.1 cm X skin deep present above 6 cm above the sternum.

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10. Incised wound measuring 8 cmX0.25 X skin deep present over back of left shoulder, obliquely placed.

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11. Incised wounds measuring 1.5X0.1 cm X skin deep and 1.5 cmX0.1 cmX skin deep present below the previous injury and obliquely placed.

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12. Incised wound measuring 2 cm x0.1 cm x skin deep present over dorsal aspect of base of left thumb, obliquely placed-defense wound.

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He has opined that the death is due to shock and haemorrhage as a result of injuries sustained. He has further stated that the investigating officer had sought his opinion on

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16.10.2016 as to whether the injuries found on the dead body could be caused by the weapon sent for verification and he has opined that said injuries could be caused by the weapon examined by him.

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Ex.P12 is the wound certificate which indicate the injury sustained by PW2 due to the assault by a machete inflicted by appellant-accused which are as under:

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Injuries : scratch mark on left wrist joint measuring 3 cmX 4cms

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Tenderness of the left hand in front of wrist joint X-ray as done on 07.02.2016 at 7.00 P.M. shows fracture of 4^th and 5^th metacarpal near the proximal 1/3^rd in the left hand

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Ex.P13 is the certificate of examination issued by Regional Forensic Science Laboratory, Eastern Range, which indicates that items 1, 2, 4, 5, 6 and 7 was stained with 'O' group of human blood.

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Evidence of Investigating Officer:

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PW13-Vijay Kumar is the PSI, who in his evidence has deposed regarding he receiving the complaint at Ex.P1 from PW1. He has further deposed that on the very same day at about 4.45 p.m. appellant-accused came to the police station along with the machete and accordingly was arrested. He has also spoken about recording the voluntary statement of the appellant-accused and he seizing the machete and the dress

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worn by the appellant-accused in the presence of witnesses and

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drawing up of the mahazar in this regard as per Ex.P4.

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PW12 is the Circle Inspector of Gubbi Circle, he has

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spoken about he taking over the investigation from PW13 and drawing up inquest mahazar as per Ex.P6, drawing up of spot mahazar as per Ex.P2, seizure of material objects MO.1 and MO2 and seizure of clothes worn by the victim which are marked as MOs.5 to 7. Recording the statement of appellantaccused under Section 164 of Cr.P.C. per Ex.P11. He has also spoken about sending the material objects for FSL examination and receiving the reports as per Ex.P13 and about the final report/opinion as per Ex.P9. Nothing has been elicited to discredit the evidence of the said witness.

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Analysis:

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Relationship between appellant-accused, PW1, PW2 and victim- Mangalagauramma is not in dispute. Similarly, appellant-accused residing with PW1, PW2 and victim since ten days prior to the incident is also not in dispute.

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Post mortem report at Ex.P8, number and nature of injuries mentioned therein and evidence of Dr.Rudramurthy examined as PW11 makes it clear that the death of victim - Mangalagauramma, wife of PW1 and mother of PW2 is due to shock and haemorrhage as a result of injuries sustained. Thus there is no dispute of the fact victim's death is homicidal.

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Ex.P12 is the wound certificate which indicates the injury sustained by PW2 due to the assault by machete inflicted by appellant-accused. The evidence of PW2 who is an injured witness has been questioned only on the ground of she being a child witness. The trial Court before recording the evidence of PW2 has posed preliminary questions as seen in the records and only after satisfying itself with regard to the rationality of the said witness has proceeded to record the evidence of the said witness. The Apex Court in the case of State of Madhya

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Pradesh Vs Balveer Singh reported in 2025 SCC Online SC 390 has laid down the principles to be followed while recording the evidence of the child witness, which are as under:

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58. We summarize our conclusion as under:—

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(I) The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent

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witness and his or her evidence and cannot be rejected outrightly.

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(II) As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the Trial Court to ascertain if the child-witness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him.

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(III) Before the evidence of the child witness is recorded, the Trial Court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion.

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(IV) The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court. The correctness of the opinion formed by the Trial Court as to why it is satisfied that the child witness was capable of giving evidence may be gone into by the appellate court by either scrutinizing the preliminary examination conducted by the Trial Court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the Trial Court.

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(V) The testimony of a child witness who is found to be competent to depose i.e., capable of understanding the questions put to it and able to give coherent and rational answers would be admissible in evidence.

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(VI) The Trial Court must also record the demeanour of the child witness during the course of its deposition and crossexamination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others.

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(VII) There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever.

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(VIII) Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution

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and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions. There is no hard and fast rule when such corroboration would be desirous or required, and would depend upon the peculiar facts and circumstances of each case.

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(IX) Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded and as such the courts must rule out the possibility of tutoring. If the courts after a careful scrutiny, find that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused. In the absence of any allegations by the accused in this regard, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition. (X) The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication.

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(i) Improvisation in testimony whereby facts have been altered or new details are added inconsistent with the version of events not previously stated must be eradicated by first confronting the witness with that part of its previous statement that omits or contradicts the improvisation by bringing it to its notice and giving the witness an opportunity to either admit or deny the omission or contradiction. If such omission or contradiction is admitted there is no further need to prove the contradiction. If the witness denies the omission or contradiction the same has to be proved in the deposition of the investigating officer by proving that part of police statement of the witness in question. Only thereafter, may the improvisation be discarded from evidence or such omission or contradiction be relied upon as evidence in terms of Section 11 of Evidence Act.

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(ii) Whereas the evidence of a child witness which is alleged to be doctored or tutored in toto, then such evidence may be discarded as unreliable only if the

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presence of the following two factors have to be established being as under:—

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• Opportunity of Tutoring of the Child Witness in question whereby certain foundational facts suggesting or demonstrating the probability that a part of the testimony of the witness might have been tutored have to be established. This may be done either by showing that there was a delay in recording the statement of such witness or that the presence of such witness was doubtful, or by imputing any motive on the part of such witness to depose falsely, or the susceptibility of such witness in falling prey to tutoring. However, a mere bald assertion that there is a possibility of the witness in question being tutored is not sufficient.

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• Reasonable likelihood of tutoring wherein the foundational facts suggesting a possibility of tutoring as established have to be further proven or cogently substantiated. This may be done by leading evidence to prove a strong and palpable motive to depose falsely, or by establishing that the delay in recording the statement is not only unexplained but indicative and suggestive of some unfair practice or by proving that the witness fell prey to tutoring and was influenced by someone else either by cross-examining such witness at length that leads to either material discrepancies or contradictions, or exposes a doubtful demeanour of such witness rife with sterile repetition and confidence lacking testimony, or through such degree of incompatibility of the version of the witness with the other material on record and attending circumstances that negates their presence as unnatural.

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(XI) Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed. A child witness who has withstood his or her crossexamination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness.

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(XII) Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining

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untutored or untainted part inspires confidence. The untutored part of the evidence of the child witness can be believed and taken into consideration or the purpose of corroboration as in the case of a hostile witness.

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As noted above, the trial Court having posed preliminary questions to the witness and having satisfied itself with regard to the rationality of the said witness has proceeded to record the evidence of said witness. In the considered view of this Court the recording of the evidence by the trial Court is in compliance with the law laid down by the Apex Court as noted hereinabove. Since nothing has been brought on record by the appellant-accused to discredit the evidence of PW2, this Court is of the considered view that the trial court has committed no error in relying upon the evidence of PW2.

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That apart evidence of PW1, brother of the appellantaccused who also happens to be the husband of the victim and father of PW2 is corroborated by the evidence of PW2.

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The other witnesses PW3, PW4 and PW5 are the relatives and neighbours who have also witnessed the incident. Their presence at the scene of offence at the time of the incident being natural and they have fully and completely supported the case of the prosecution.

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The evidence of the eye witnesses is found to be credible inasmuch as there is no inconsistency or contradiction in the versions of the witnesses. Thus the present case is based on the direct evidence. The motive being the property dispute has also been successfully established by the prosecution witnesses. Ex.P13 is the certificate of examination issued by Regional Forensic Science Laboratory in respect of 7 material objects namely machete, shirt, blood stained soil, normal soil, a blouse, saree and a petticoat. The certificate states that these material objects were stained with human blood of `O' group.

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In view of oral and documentary evidence, medical evidence of PW11 the death being homicidal has also been established.

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The trial Court at paragraph No.36 of its Judgment has adverted to the requirement of prosecution establishing its case of appellant-accused committing/causing culpable homicide amounting to murder. In that it is held the injuries inflicted by the appellant-accused on the vital parts of the body of the victim by use of dangerous weapon with a clear intention

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of causing death. In order to make out a case under Section 304 Part II of IPC as contended by learned counsel for appellant, it has to be demonstrated that the appellant-accused who inflicted fatal injuries had no intention to cause the death or had no knowledge that such act of causing injuries is likely to cause the death. Evidence on record indicates that the appellant-accused had picked up quarrel with PW1 and continued the same with the victim. It is only thereafter he assaulted her with machete on her head and neck and dragged her outside the house and continued to assault her. Thereafter he even caused grievous injury to PW2 a girl aged 12 years who had only tried to protect her mother from the brutal attack of the appellant-accused. Clearly appellant-accused had acted in a cruel and unusual manner depriving and denying any scope for consideration of his case under the exceptions provided under Section 300 of IPC or to alter the conviction to one under Part II of Section 304 IPC.

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In the light of the aforesaid material evidence placed

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by the prosecution, this Court does not see any reason to interfere with the impugned judgment and order convicting and

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sentencing the appellant-accused to undergo rigorous imprisonment for the offences punishable under Sections 302 and 326 of the IPC. Appeal is dismissed.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(M.G.S. KAMAL) JUDGE

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SBN List No.: 1 Sl No.: 14

Nataraju v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Nataraju v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

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