Sri Ramaraj @ Ramanarayana Vs State by S.P.P.

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 16.08.2014 PASSED BY FAST TRACK COURT AND ADDITIONAL SESSIONS JUDGE AT CHANNARAYAPATNA IN S.C.NO.164/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC ETC.

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

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HC-KAR

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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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ORAL JUDGMENT

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(PER: HON'BLE MRS.JUSTICE K.S.MUDAGAL)

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Challenging the judgment and order of conviction and

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sentence passed against him, the accused in S.C.No.164/2012 on the file of Fast Track and Additional Sessions Judge, Channarayapatna, Hassan has preferred this appeal.

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By the impugned judgment and order, the trial Court has convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to life imprisonment and fine of Rs.20,000/-.

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By the impugned judgment and order the appellant has been convicted for the charge that on 15.04.2012 at 11.30 p.m. due to some illwill, with an intention to commit murder he assaulted his co-worker/Raghu Sha with MO.5/wooden reaper and caused him grievous injuries. The victim succumbed to the injuries on 20.04.2012 at 10.30 a.m. in Victoria Hospital, Bangalore. The appellant was sole accused in the said case. For the purpose of convenience the parties are referred to henceforth according to their ranks before the trial Court.

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Heard Sri S.Javeed, learned Counsel for the

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appellant/accused and Sri Sowmya, learned HCGP for the State.

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Submissions of Sri S Javeed, learned Counsel for the accused:

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Eyewitnesses PWs.14 and 15 have not supported the prosecution version. Then what remains is only the circumstantial evidence. The evidence of PWs.1 and 6 regarding motive and last seen circumstance was not consistent and cogent. PWs.14 and 15 who are also cited for motive and last seen circumstance have not supported the prosecution case. Regarding recovery of blood stained clothes of the deceased and spot mahazar, PWs.8 and 9/panchas did not support those proceedings. Similarly regarding the alleged recovery of blood stained clothes of the accused, PWs.12 and 13 did not support the prosecution case. Other witnesses were not independent witnesses. The medical evidence was not conclusive about cause of death. Since recovery itself was not satisfactorily proved, the trial Court was in error in connecting the accused to the crime based on FSL Report. Even if it is held that the accused has assaulted the victim, as per the prosecution itself, both of them were drunk and there was free fight between

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them. As per the prosecution, the accused had dealt a single blow on the head of the victim. The victim died five days after the incident. Head injury was not the immediate cause for the death. The records show that he died because of brain haemorrhage. If immediate surgery was conducted, he would have survived. Therefore, in the alternative, at the most ,the act could constitute the offence under second part of Section 304 of IPC. In such event, he shall be convicted and sentenced to the offence under second part of Section 304 of IPC and he be given set off for the period of detention already undergone by him.

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Submissions of Smt.Sowmya, learned HCGP:

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PW.1 is employer of the deceased and the accused.

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The evidence of PWs.1 and 6 is cogent and consistent with regard to motive circumstance and last seen circumstance. Therefore, PWs.14 and 15 turning hostile did not dent the case of the prosecution. So far as recovery of blood stained clothes of the deceased, mud samples etc. i.e. MOs.1 to 4 under Ex.P3/seizure mahazar, PW.1 has supported the proceedings. Therefore PWs.8 and 9 mahazar witnesses turning hostile was not fatal. PW.1 had no enmity or motive to implicate the

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accused in the case. Though PWs.12 and 13/panchas for recovery of blood stained clothes of the accused and weapon at his instance did not support, PW.17/contractor, who was also working on the same project and PWs.4 and 5/police constables have supported the said recovery proceedings. The accused failed to explain how his clothes were stained with blood. FSL Report/Ex.P26 shows that blood stains found on the clothes of the accused, deceased and the weapon were one and the same, apparently i.e, blood of the deceased. The accused did not explain that circumstance. Nothing was elicited in the cross-examination of PWs.1, 4, 5, 6 and 17 to show that they had any motive for false implication of the accused or they would get any benefit by false implication of accused. The trial Court on judicious appreciation of the evidence has convicted and sentenced the accused. There are no grounds to interfere with the order.

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On hearing both side and on examination of the materials on record, the question that arises for consideration is “Whether the impugned judgment and order of conviction and sentence is sustainable”?

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ANALYSIS

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Some of the admitted facts of the case are as follows:

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That PW.6/Ranjith Das is from West Bengal. He had taken up contract in the project of construction of Railway line between Hirisave and Shravanabelagola. PW.1/Venkaiah was also the contractor in the same project. PW.6 had brought many workers from West Bengal for said project. Accused Ramaraj @ Ramanarayana and victim Raghu Sha were two amongst such workers from West Bengal. Both of them were residing in the accommodation provided to them at work project camp near Hirisave. On 15.04.2012 at about 11:30 p.m. Raghu Sha was found injured in front of Madhu Wines of Hirisave village. On getting the information, PW.1 shifted him to Hirisave Government Hospital, from there to Hassan Hospital and from Hassan Hospital to KIMS Hospital, Bengaluru and from KIMS hospital to Victoria hospital, Bengaluru. Raghu Sha succumbed to the injuries on 20.04.2012 at 10.30 am. in Victoria hospital.

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The case of the prosecution is as follows:

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(i) That accused and Raghu Sha used to consume

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alcohol every night. About 15 days prior to 15.04.2012 Raghu Sha had quarreled with accused on the ground that accused listening to the songs in loud tone in his mobile phone is causing disturbance to him and Raghu Sha had bet the accused. Raghu Sha used to quarrel with the accused every day. Therefore, accused decided to finish him. On 15.04.2012, the accused took Raghu Sha to Madhu Wines. Both of them consumed alcohol and had dinner. While returning at 11.30 p.m., the accused, noticing nobody on the road, picked up MO.5/Reaper, hit on the head of Raghu sha and caused him grievous injuries.

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(ii) PW.6 was informed by the surrounding people about the incident. He in turn informed PW.1/employer of accused and deceased. Both of them rushed to the spot and shifted the victim to hospital at Hirisave, Hassan, as aforesaid.

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After admitting him into the hospital, PW.1 filed complaint as per Ex.P1 before PW.18/PSI. Based on that, he registered FIR as per Ex.P21 initially for the offence punishable under Section 307 IPC and took up investigation. Pending investigation, the

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victim died, therefore, Section 302 of IPC was included in the case. He handed over further investigation to PW.19/Investigating Officer.

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(iii) During investigation, the Investigating Officer got conducted inquest mahazar, spot mahazar, referred the dead body to postmortem examination. At the instance of accused, incriminating articles were seized. Statements of witnesses were recorded. The seized articles were referred to FSL and FSL report was received and charge sheet was filed against the accused.

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In support of the case of the prosecution, PWs.1 to 20 were examined. Exs.P1 to P31 and MOs.1 to 7 were marked. The accused after his examination under Section 313 Cr.P.C did not lead any defence evidence.

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The Trial Court, after hearing the parties, by the impugned judgment and order, held that the prosecution has established the charge against the accused and convicted him for the offence punishable under Section 302 IPC. Further, the trial Court sentenced him to life imprisonment and fine of Rs.20,000/-.

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The case of the prosecution was based on:

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1. Evidence of eye witnesses PWs 1, 6, 14 and 15.

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1. The evidence of PWs.1 and 6 regarding the circumstance of motive and last seen together.

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1. Res gestae witnesses PWs 1 and 6.

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1. Recovery of weapon and blood stained clothes of the accused under mahazar Ex.P8.

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1. Recovery of blood stained clothes of deceased and Mud sample MOs.1 to 4.

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1. Medical evidence.

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1. FSL evidence.

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Reg. eyewitnesses

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According to the prosecution, accused and victim

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had liquor in Madhu Wines on 15.04.2012 and after that, in front of the said wine shop at 11.30 p.m. accused assaulted the victim with the reaper and that was witnessed by PWs.14 and 15/the cleaner and cashier of Madhu Wines. PW.14 and PW.15 completely turned hostile to the prosecution case. Even after

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the Public Prosecutor treating them hostile, they denied having given the statement before the Investigating Officer as per

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Exs.P16, 17, 18 and 19. Therefore, the evidence of PWs. 14 and 15 was not helpful to the prosecution to connect the accused to the crime. Therefore, the Court has to examine whether even in the absence of their evidence, the prosecution was able to establish the overt acts of the accused. For that purpose, the prosecution relied on motive and last seen circumstance.

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Reg. motive and last seen circumstance:

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As the evidence on these two circumstances overlap

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on each other, these two circumstances are taken up together for discussion. According to the prosecution, about 15 days prior to the incident, there was a quarrel between the accused and deceased. That was motive for the murder. To prove this aspect, the prosecution relied on the evidence of PWs.1 and 6. PW.1 speaks about one Rangarajan had taken contract of construction of railway line between Hirisave and Shravanabelagola. PW.1 was working under him as an engineer in the said project. PW.6 was working under PW.1 as mason and he had brought 7 to 8 persons from West Bengal including accused, deceased, PW.2/Bapi Chathrapathi and PW.7/Dasa krishna and they were working under him.

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PW.6 also deposes to the fact of he working with PW.1 in the railway project and he getting the accused and deceased and other workers from West Bengal to employ in that project. They also speak about the quarrel between the accused and the deceased about 15 days prior to the incident and about accused and deceased having alcohol together. PW.6 specifically stated that on learning about the quarrel between the accused and deceased, himself and PW.1 had advised them not to quarrel.

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The evidence of PWs.1 and 6 shows that themselves and accused were living near the project site. The evidence of PWs.1 and 6 regarding PW.6 employing them under PW.1 is not challenged in the cross examination. ***As against that, it was suggested to them that there was quarrel between accused and PW.1 on the ground that PW.1 was extracting more work and paying less due to such illwill, PW.1 and PW.6 have falsely implicated the accused in the case, PW.1 and PW.6 denied those suggestions.

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Further PWs.2 and 7 were also co-workers of the accused and the deceased. In their cross examination, nothing

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is elicited regarding such illwill between PWs.1 and 6 on the one hand and accused on the other hand in the matter of payment of wages. There was nothing on record to infer that PWs.1 and 6 would derive any benefit by false implication of the accused in the case. Therefore, their evidence regarding motive circumstance was found reliable.

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So far as last seen circumstance, according to the prosecution, the people noticing the accused assaulting the victim informed PW.6, he in turn informed PW.1 and both of them rushed to the spot. They found the accused and injured victim. Then accused went away and they shifted the victim to the hospital. The evidence of PWs.14 and 15 was also relied on to prove this circumstance, but, they did not support the prosecution. Therefore, their evidence was not helpful.

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PW.6 in his chief examination categorically stated that on people informing him about the quarrel between the accused and deceased, he rushed to the spot and found the accused and deceased fighting and then victim was taken to the hospital. PW.1 deposes that on PW.6 informing him about the accused assaulting the victim, he went to the spot at 00-30

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hours and found the victim lying on the road with injuries. Then himself and PW.6 shifted the victim to the hospital. The fact of PWs.1 and 6 shifting the victim to the hospital is not disputed. That was further corroborated by the medical evidence. Therefore, there was no reason to disbelieve the evidence of PWs.1 and 6 that PW.6 went to the spot and found the accused and deceased quarrelling and then PW.1 coming to the scene of offence. The evidence of PW.6 amounts to resgestae evidence as per Section 6 of the Indian Evidence Act, 1872 (‘Evidence Act’ for short) and acceptable on that count also.

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Reg. Discovery under Section 27 of the Evidence Act:

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According to the prosecution, on 18.04.2012 PW.18/Investigating Officer arrested the accused, interrogated and recorded his voluntary statement. The accused confessed as per Ex.P22 to show the place where he had concealed his blood stained shirt, pant and the reaper, then led the Police and panchas viz., PWs.12, 13 and 17 to a bush situated in the land of one Nagamma took out MOs.5 to 7 from the bush and he seized the same under the mahazar/Ex.P8 and during the mahazar the photographs Exs.P9 to 11 were taken.

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To prove the aforesaid circumstance the

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prosecution relied on the evidence PWs.12, 13 and 17/panchas and PW.18/the Investigating Officer and Exs.P8 and P9 to 11. PWs.12 and 13 did not support the proceedings under Ex.P8. However, they admitted their signatures on Ex.P8 and stated that they have subscribed their signatures in the Police station. But both of them admitted that Ex.P9 to 11 photographs were taken at the place where the accused had taken them. However, PW.17 another pancha to Ex.P8 supported the proceedings under Ex.P8. He is the co-worker of accused and the deceased. He also deposed that on the previous day the accused confessed before him about he assaulting the victim and he translating the statements of the accused to the Police. In his cross examination though he expressed his ignorance about the other signatories to Ex.P8, he has withstood the cross examination with reference to the recovery under Ex.P8. He denied the suggestion that the accused made galata against him demanding proper wages, therefore, he is falsely deposing against him. No where it is elicited that accused was employed under PW.17. Therefore there is no reason to disbelieve the

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evidence of the prosecution regarding recovery of MOs.5 to 7 under Ex.P8.

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Reg. Recovery of blood stained and sample mud and clothes of the deceased:

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According to the prosecution, after the registration of the FIR, PW.18/Investigating Officer visited the scene of offence on 18.04.2012 and the spot was shown to him by PW.1. He drew the spot mahazar/Ex.P2 in the presence of panchas PWs.8 and 9. During the mahazar he collected MOs.1 and 2 sample mud and blood stained mud. In Ex.P2 the scene of offence is shown as Hirisave-Shravanabelagola road running between Madhu Wines and Prakash Pig Hotel. Basically the scene of victim being found with injuries in front of Madhu Wines is not disputed by the accused. PWs.8 and 9 in the chief examination supported the proceedings under Ex.P2. Though in the cross examination they stated that they are not eye witnesses to the murder and at the time of drawing the mahazar the accused was not present, they adhered to the fact of drawing mahazar/Ex.P2 and seizure of MOs.1 and 2. PW.1 also supported the proceedings under Ex.P2. Thus trial Court was justified in holding that seizure of MOs.1 and 2 under Ex.P2 was proved.

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So far as the seizure of the clothes of the deceased under Ex.P3, PW.1 deposed that after admitting the victim into the hospital in Bengaluru he collected M.Os.3 and 4/the blood stained shirt and pant of the victim, carried them to the Police station and produced the same before the Police and the same were seized under the mahazar Ex.P3. PW.18/Investigating Officer also testified that on PW.1 producing the clothes, he seized the same under Ex.P3 in the presence of panch witnesses PWs.10 and 11. It is no doubt true that PWs.10 and 11 turned hostile and did not support the proceedings under Ex.P3. However, the evidence of PW.1 and PW.18 in that regard was credible. Hence the Trial Court was justified in holding that the said circumstance was proved.

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Reg. Medical evidence:

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To prove the fact that the death of Raghu Sha was homicidal, the prosecution relied on the evidence of PW.16/the Medical officer of Victoria hospital. He deposed that on the police requisition he conducted Post Mortem examination on

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the dead body of Raghu Sha on 20.04.2012 between 7.30 and 8.30 p.m. and issued post mortem report as per Ex.P20.

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According to him, the following injuries were found on the dead

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body:

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External injuries:

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An abrasion measuring 1 c.m.x 1 c.m. seen over front of right knee.

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2. An abrasion measuring 2 c.m.x 2 c.m. present over right side of trunk.

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Abrasions, three in number present over back of right forearm measuring 2 c.m.x 2 c.m., 2 c.m.x 3 c.m. and 1 c.m.x 1 c.m. situated 2 c.m. apart.

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An abrasion measuring 3 c.m.x 1 c.m. present over forehead at its middle.

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An abrasion measuring 1 c.m.x 1 c.m. present over root of nose.

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Surgically sutured wound present over right parietal region measuring 12 c.m.x 2 c.m., obliquely placed.

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Surgically sutured wound present over right parietal eminence measuring 2 c.m.x 3 c.m.

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An abrasion measuring 1 c.m.x 1 c.m. present over right ear lobe at it’s outer aspect.

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Internal Injuries:

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Scalp: On reflection, Blood extravasation seen all over scalp left temporal is contused.

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Skull: 1) Vault shows comminuted fracture over an area of 8 c.m.x 6 c.m. at right parietal bone with fissured fracture of length 12 c.m. radiating upto left parietal eminence

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2) base of skull shows fissure fracture of length 11 cm over right temporal bone at middle cranial fossa.

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Brain: Oedencatous shows diffuse sub-dural hemorrhage and sub arachnoid hemorrhage

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He opined that MO.5 could cause such injuries and

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death was due to the head injury. Though in the cross examination of PW.16 it was suggested that they were accidental injuries, in the evidence of material witnesses i.e., PW.1, 6, 17 and other witnesses, defence of accidental death was not put forth. When the evidence of PW.16 and other witnesses is read together, it leads to the conclusion that the death was homicidal one.

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Reg. FSL report:

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It is already held that the seizure of MOs.5 to 7/the weapon of offence and the clothes of the accused at his instance and MOs.1 to 4 viz., sample mud, blood stained mud, clothes of the deceased was proved. According to prosecution PW.19/Investigating Officer referred MOs.1 to 7 to RFSL for examination. On examining the same, the RFSL issued report as per Ex.P26. In that regard the prosecution relied on the evidence of PW.19 who deposed to the fact of sending Mos.1 to 7 to RFSL and PW.20/Scientific Officer of RFSL, Mysore who

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deposed to the fact of examining those articles and giving the report Ex.P26. In the cross examination of the said witnesses nothing was elicited to discredit their evidence. The evidence of PW.19 and Ex.P26 show that except for sample mud, on all other articles viz., the clothes of the accused and deceased and blood stained mud collected from the scene of offence, AB blood group was found. Accused failed to explain the blood group found on MOs.5 to 7 i.e, the weapon and his clothes seized at his instance. Thus such scientific evidence connects the accused to the crime.

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From the aforesaid reappreciation of the evidence, this Court is of the opinion that the evaluation of the evidence by the Trial Court and the conclusions reached by the Trial Court that the victim was assaulted by the accused with MO.5 leading to his death is sustainable one.

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Then the next question is whether the accused assaulted the victim with an intention to commit his murder. The evidence of PWs.1, 6 and 17 shows that at the time of the incident both accused and victim were drunk. The accused had not carried any weapon with him. Even according to the prosecution he pulled MO.5/the reaper which was lying on the

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road side and dealt with a single blow on the head of the victim and went away. Thereby it becomes clear that there was no premeditation on the part of the accused. The earlier quarrel between the accused and the deceased had taken place 15 days prior to the incident. Thereafter they were living together in the same accommodation. Therefore, it cannot be said that the accused assaulted the victim with an intention to commit his murder. However, having regard to the weapon used and the part of the body which was chosen for landing the blow, it can be inferred that the accused had the knowledge that such blow could cause the death of victim. Hence, the act of the accused falls under second part of Section 304 IPC and not Section 302 of IPC.

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Accused has already undergone period of detention since 2012. He is a labour from West Bengal. Considering such factors, it is just and appropriate to reduce the sentence to imprisonment of 10 years and fine of Rs.5,000/-. Hence the following:

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ORDER

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(i) Appeal is partly allowed.

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(ii) The impugned Judgment and order of conviction is modified as follows:

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The accused is convicted for the offence punishable under second Part of Section 304 IPC. For the said offence he is sentenced to undergo imprisonment for 10 years and fine of Rs.5,000/-. In default to pay the fine amount he shall undergo simple imprisonment for six months.

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There shall be set off for the period of detention already undergone by him.

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The trial Court shall issue modified conviction warrant accordingly.

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The Court places on record its appreciation for the able assistance rendered by Sri S.Javeed, learned panel counsel for High Court Legal Services Committee.

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Sd/(K.S.MUDAGAL) JUDGE

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

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KSR/AKC List No.: 1 Sl No.: 12

Sri Ramaraj @ Ramanarayana v. State by S.P.P.

Case brief

What is this about?

What did the court decide?

Sri Ramaraj @ Ramanarayana v. State by S.P.P.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

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