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Korachara Nagesh @ Nagappa S/O … vs State Of Karnataka on 25 July, 2019

IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY 2019
PRESENT
THE HON’BLE MR.JUSTICE B.A.PATIL
AND
THE HON’BLE MR. JUSTICE BELLUNKE A.S.

CRIMINAL APPEAL NO.100039/2015
BETWEEN:

KORACHARA NAGESH @ NAGAPPA
S/O ERANNA
R/O. 11TH WARD, TEKKALAKOTE,
SIRUGUPPA TALUKA
… APPELLANT

(BY SRI. PRAFULLA S. NAIK, ADVOCATE)

AND:

STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD
THROUGH TEKKALAKOTE P.S.
… RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP)

THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF
CR.P.C.,1973 SEEKING TO PASS A JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE PASSED BY THE II-ADDITIONAL
SESSIONS JUDGE, BALLARI IN S.C.NO.36/2013 FOR THE
OFFENCES PUNISHABLE U/S.498A AND 302 OF SectionIPC AND
ACQUITTING THE ACCUSED/APPELLANT FORM THE CHARGES
LEVELED AGAINST HIM.

THIS APPEAL COMING ON FOR HEARING THIS DAY, B.A.
PATIL J., DELIVERED THE FOLLOWING:
:2:

JUDGMENT

The present appeal has been preferred by the

appellant/accused being aggrieved by the judgment of

conviction and order of sentence passed by the II Addl.

Sessions Judge, Ballari in S.C.No.36/2013 dated

28.10.2013, whereunder the appellant/accused has been

convicted and sentenced for the offences punishable

under Sections 498-A and Section302 of the IPC.

2. We have heard the learned Amicus Curie for

the appellant/accused and the learned Addl. SPP for the

respondent-State.

3. The case of the prosecution in brief is that,

the accused got married the deceased about 13 years

back. On 09.10.2012, the accused subjected her to

cruelty by harassing her both mentally and physically by

abusive words. As the deceased had not prepared pork,

on the same day at about 6.45 pm, the accused took the

deceased to bring masala items to APMC market in
:3:

Tekkalakote and with an intention to commit murder of

the deceased, picked up quarrel with her and assaulted

her with hands, kicked to her stomach with his legs and

assaulted her with size stone on her head, stomach and

legs, due to which the deceased sustained grievous

injuries and she has been sent in the Ambulance to the

hospital and there she breathed her last at about 7.30

pm. On the basis of the complaint a case has been

registered and after investigation, charge sheet has been

filed.

Thereafter the learned Magistrate committed the

case to the Sessions Court. The learned Sessions Court

took the cognizance and after hearing the learned Public

Prosecutor and the learned counsel for the accused,

charge was prepared, read over and explained to the

accused. Accused pleaded not guilty and claims to be

tried, and as such, the trial was commenced. In order to

prove its case, the prosecution got examined PWs. 1 to 14

and got marked Exs. P1 to P11 and M.Os. 1 to 4. The
:4:

statement of the accused was recorded under Section

313 Cr.P.C. by putting incriminating material as against

him. The accused denied all incriminating materials, but

he has not led any defence evidence nor got marked any

documents.

After hearing the learned counsel appearing for the

parties, the trial Court came to the conclusion that there

is material against the accused and convicted the

accused. Challenging the legality and correctness of the

said judgment, the appellant/accused preferred the

present appeal through Legal Services Authority.

4. It is the submission of the learned Amicus

Curie that the appellant/accused is innocent and he has

been falsely implicated in the case. It is her further

submission that, though PWs.7 and 11 to 13 are the

eyewitnesses to the alleged incident, but there is no

corroboration in their evidence. Though they have given

contradictory statement to each other, the Court below
:5:

without appreciating the said fact came to a wrong

conclusion and has wrongly convicted the accused. It is

her further submission that the presence of these

witnesses at the place of incident itself is doubtful.

Though it is the case of the prosecution that the accused

took the deceased to the APMC market to bring the

masala for preparing pork, but actually in the APMC

market yard no such shops were available. It is her

further submission that, if the said witnesses were

present at the place of incident and have witnessed the

alleged incident, then they could have even tried to pacify

the quarrel between the deceased and the accused, but

immediately they have not acted by making hue and cry.

Their evidence is unnatural and it is not acceptable in

law. In order to substantiate her contention, she relied

upon the decision in the case of State of Panjab Vs.

Bittu and another reported in AIR 2016 SC 146.

It is her further submission that, when once the

presence of the said witnesses is unnatural and the
:6:

evidence is also shaky, then the benefit of doubt ought to

have been given to the accused. It is her further

submission that the accused/appellant cannot be

convicted for the serious offence as there are lacunas in

conducting the case by the prosecution. It is her further

submission that the appellant/accused is a young person

and he was present in the house itself when the police

apprehended him. There is every possibility of the

deceased sustaining injuries due to the fall of building

material, as the building construction work was going on

in the APMC yard. It is further submitted that, without

appreciating the above said facts and circumstances, the

trial Court has come to a wrong conclusion and convicted

the accused. On these grounds, she prayed to allow the

appeal and to set aside the impugned judgment of

conviction and order of sentence.

5. Per contra, learned Addl. SPP vehemently

argued that, PWs.11 to 13 are the eyewitnesses to the

alleged incident. They have categorically stated that,
:7:

they have last seen the accused and the deceased going

together in the APMC yard and they have also spoken

with regard to the quarrel taken place between the

accused and the deceased and thereafter the accused

assaulting the deceased with hands and size stone on her

head, stomach, legs and other parts of the body. It is his

further submission that, PW13, who is a Security Guard,

has also specifically stated about the overt acts of the

accused. The evidence of PWs.11 to 13 corroborates with

each other and the contradictions are minor in nature

and they will not take away the case of the prosecution.

It is his further submission that, even the conduct of the

witnesses clearly goes to show that, immediately on

hearing the screaming sound, they went to the place of

the alleged incident and even the Security Guard had

called the Ambulance and sent the injured to the

hospital. The presence of PW13 at the place of incident

as a Security Guard has also not been denied. Under the

said facts and circumstances, the evidence which has
:8:

been produced clearly goes to show that, it is a case of

ill-will between the husband and wife. The accused took

the deceased to APMC market yard and there he took

quarrel with her and assaulted her with size stone and

caused her death. The evidence which has been

produced clearly points out the guilt of the accused. He

further submitted that, since from the inception, PWs. 2,

3 and 6 have stated about the harassment meted out by

the accused to the deceased. Taking into consideration

the said evidence, the trial Court has come to a right

conclusion and has rightly convicted the accused. There

are no good grounds to interfere with the said order.

On these grounds he prayed to dismiss the appeal.

6. I have carefully and cautiously gone through

the submission made by the learned counsel appearing

for the parties and perused the records.

7. In order to prove its case, the prosecution

has got examined 14 witnesses. PW1 is the pancha to
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the seizure mahazer Ex.P1, whereunder the stone which

has been used for commission of the offence has been

seized and got marked as M.O.1. PW2 is the brother of

the deceased. PW3 is also the brother of the deceased

and complainant. They have spoken with regard to the

harassment meted out by the accused to the deceased.

PW4 is the panch witness to the inquest mahazer Ex.P3.

PW5 is the panch witness to Ex.P4, whereunder the

clothes of the deceased have been seized by drawing a

mahazer. PW6 is the elderly person, who spoke about

the ill-treatment and harassment caused by the accused

to the deceased and how he used to advice and pacify the

quarrel. PW7 is an eyewitness to the alleged incident.

He has also lastly seen the accused and the deceased

going inside the APMC yard and he also informed about

the incident over phone to the complainant. PW8 is the

Police Constable who carried the FIR and submitted the

same to the jurisdictional police. PW9 is the ASI, who

registered the case as per the complaint filed by PW3.
: 10 :

PW10 is the doctor who conducted autopsy over the body

of the deceased and issued post-mortem report as per

Ex.P6. PWs. 11, 12, 13 are the eyewitnesses, who have

witnessed the alleged incident when the accused

assaulted the deceased. PW14 is the Investigating

Officer, who investigated the case and filed the charge

sheet as against the accused.

8. It is the specific contention of the learned

counsel for the appellant that there was no ill-treatment

and harassment caused by the accused as their marriage

has taken place about 13 years back. But as could be

seen from the evidence of PWs. 2 and 3, who are none

other than the brothers of the deceased, they have

categorically deposed before the Court that the accused

used to consume alcohol and used to abuse the deceased

in filthy language and thereby the accused used to ill-

treat and harass her.

: 11 :

9. PW6 is the elderly person in the village. He

has also spoken with regard to the ill-treatment and

harassment caused by the accused and subsequently a

panchayat being held in this behalf and he pacifying the

said quarrel between the accused and the deceased. He

deposed that, when they pacified the quarrel in the

village, accused promised that he will look after his wife

well and he will not repeat the same things.

10. If all these materials are looked into, it clearly

goes to show that the accused was in the habit of

consuming alcohol and ill-treating and harassing the

deceased. Even as could be seen from the contents of

the complaint and other evidence, it is the specific case of

the prosecution that, as on the date of the alleged

incident, the accused came and asked the deceased to

prepare the pork and deceased told that there is no

masala item and in that guise the accused took the

deceased to APMC yard to bring the said item and there
: 12 :

he again took quarrel with her and assaulted her with

hands, kicked on her stomach and also assaulted her

with size stone on her head, stomach and legs. The said

act of the accused was also seen by PWs. 7 and 11 to 13.

Their evidence also corroborates with the evidence of

PWs.2, 3 and 6. Under the said facts and circumstances,

it may safely be held that the prosecution has

established the fact that there was ill-treatment and

harassment by the accused to the deceased as alleged in

the complaint.

11. In order to prove its case, the prosecution has

also got examined the eyewitnesses. PW7 in his evidence

has deposed before the Court that, on 09.10.2012 at

bout 4.30 pm, the accused requested his wife to prepare

pork and his wife said that it cannot be prepared as

masala is not there and he started quarreling with her.

He has deposed that, at that time, he was there in the

same lane and thereafter the accused took the deceased
: 13 :

for purchasing the spice. He further deposed that, at

about 6.30 pm he came to know that the accused

committed murder of deceased by assaulting her and

immediately he went there and saw the injuries over the

head and other parts of the body of the deceased. During

the course of cross-examination, nothing has been

elicited so as to discard the evidence of this witness.

12. PW11 is another eyewitness. In his evidence

he has deposed that, when he was coming back from

their field, near the APMC compound, they heard

screaming voice of the wife of the accused and he along

with PW12 went inside the compound and at that time,

they saw the accused assaulting the deceased with size

stone on her stomach and at that time, PW13 also came

there. Thereafter 108 Ambulance was called by phone

and injured was shifted to the hospital and thereafter he

came to know that at about 7.30 pm, she succumbed to
: 14 :

the injuries. The evidence of PW12 is also in line with

the evidence of PW11.

13. PW13 in his evidence has also deposed that

he was working as a Security Guard in the APMC Yard.

On 09.10.2012 at about 6.45 pm, when he was standing

near APMC, he saw the accused and deceased quarreling

with each other and at that time, accused assaulted the

deceased with size stone on her back side head, stomach

and other parts of the body. At that time, PWs. 11 and

12 also called him and he informed PW12 to call 108

Ambulance and thereafter the injured was taken to the

hospital and he came to know that at about 7.30 pm, she

succumbed to the injuries. He has also identified the

M.O.1 – stone which was used by the accused to commit

murder of the deceased.

14. By going through the evidence of PW13, his

evidence appears to be natural and probable. Since the

alleged incident has taken place in the APMC yard and
: 15 :

he has categorically deposed before the Court below that

he has seen the accused and the deceased quarrelling

with each other and immediately thereafter the accused

assaulted her with stones and thereafter he called the

Ambulance and sent the injured to the hospital. Though

it is contended by the learned counsel for the appellant

that the presence of PWs. 11 and 12 is doubtful, but as

could be seen from the evidence of PW13, he has

categorically stated that immediately after the incident he

called PWs. 11 and 12 and they also came there. Even

assuming that, if they have come to the place after the

incident, as per Section 6 of the Evidence Act, under res

gestae, their presence and seeing the deceased

immediately after the incident also cannot be overruled.

When the witnesses have categorically stated about the

overt acts of the appellant/accused that he took quarrel

with the deceased and thereafter assaulted her, then

their evidence can be believed.

: 16 :

15. Though it is contended by the learned counsel

for the appellant/accused that there are contradictions

in the evidence of these witnesses, but as could be seen

from the cross-examination of the said witnesses and the

Investigating Officer, no such contradictions have been

confronted to the witnesses as contemplated under

Section 145 of the Evidence Act and they have not been

got marked and properly placed on record. Under these

circumstances, the said contention is not acceptable in

law. Be that as it may. Even the said contradictions are

minor and they will not take away the case of the

prosecution.

16. Even the evidence of PWs. 11, 12 and 13

corroborates with the post-mortem report Ex.P6. Therein

the doctor, who was examined as PW10, has given his

opinion that the death is due to shock and hemorrhage

as a result of the head injury. The witnesses have also

stated that the accused has taken the size stone and has

assaulted on the head, stomach, leg and other parts of
: 17 :

the body. It corroborates with the evidence of the doctor.

In that light also the prosecution has clearly established

that it is the accused alone who has committed the

murder of the deceased. It is not the case of the accused

that the deceased died due to fall of any building material

on her. The defence taken by the accused is that, it is a

suicidal death. If it is a suicidal death and if the accused

is present at that time, then nothing prevented him

either to file a complaint or to take the injured to the

hospital. The conduct of the accused is also very

relevant for the purpose deciding the case. In that light

also it creates doubt in the defence taken by the accused.

17. Be that as it may. The injury suffered by the

deceased are to head, stomach, leg and other parts and

they cannot be caused in the case of suicide. There is no

explanation even when statement of the accused is

recorded under Section 313 Cr.P.C. In that light also the

contention of the learned counsel for the accused is not

acceptable.

: 18 :

18. Looking from any angle, though the learned

counsel for the appellant/accused has raised several

contentions so as to get the accused acquitted, but the

evidence produced by the prosecution is so strong that it

cannot be disbelieved to come to a different conclusion.

Under the said facts and circumstances, there are no

good grounds to interfere with the order of the trial

Court. The same is liable to be confirmed.

19. We have carefully and cautiously gone

through the judgment of the trial Court. The trial Court

after considering the evidence and material placed on

record it has taken a right conclusion. There is no

perversity or illegality while passing the impugned order.

The appeal is devoid of merit and the same is liable to be

dismissed.

Accordingly the appeal is dismissed. The

judgment of conviction and order of sentence dated
: 19 :

28.10.2013 passed by the II Addl. Sessions Judge,

Ballari, in S.C.No.36/2013 is hereby confirmed.

We place on record the valuable assistance

rendered by the learned Amicus Curiae to this Court in

disposing off this case.

The High Court Legal Services Committee is hereby

directed to pay the fee of learned Amicus Curiae, as per

the norms.

Sd/-

JUDGE

Sd/-

JUDGE
gab

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