S P DEVARAJU Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a Division Bench of the Karnataka High Court allowing the State's appeal and setting aside the judgment of acquittal passed by learned Additional Sessions Judge, Hassan, in ASE No. 54 of 1988. The High Court held the appellant guilty and convicted him for offence punishable under Section 304, Part II of the Indian Penal Code, 1860 (for short IPC).

(2.) Two persons faced trial in the aforesaid sessions case; one of them Dasegowda A2 died during the pendency of the trial.

(3.) Prosecution version in a nutshell is as follows : A-1 and A-2 were close friends. A-2 and one Channegowda (PW5) of A. Guduganahally had land disputes. A2 belongs to Dasarakoppalu, Hassan taluk and A-1 is from Salagame, Hassan Taluk Panchayat was held in the house of M.Raju (CW-17) S/ o M.L. Annappa, a cloth merchant, New line road, Hassan, in respect of the said land dispute. But there was still ill-will between them in spite of the settlement in the panchayat. C.B. Nagendra (PW1) who was a member of the mandal panchayat and residing at Hassan is a friend of A-1 as well as deceased Puttaraju. On 1.2.1988 the deceased Puttaraju went to the house of PW1 at about 7 p.m. He asked PW1 to accompany him to Bazar, Hassan. Both of them went towards Hassan bus stand. A1 was present there. A1 told to PW1 that persons belonging to Sachin Liquor shop had made a mistake and asked, them to accompany them. PW1, A-1 and the deceased went to Sachin Liquor shop and there they were told that A-1 demanded free liquor and had created nuisance. Then PW1 scolded A-1 himself and then all of them were returning from the said shop. Then they came near 'Shobha Liquors'. A-1 told PW1 and deceased that he would give a party to them. They went to 'Shobha Liquors'. PW-2 was a vendor in Shobha Liquors. PW3 Puttaraju was working as cashier. Then, A-1 ordered for one bottle of rum. 180 ML of rum was supplied and all the three consumed it. Further, A1 ordered for 90 ML of Rum and again for 60 ML of rum and he consumed it. The deceased Puttaraju who belonged to A. Guduganahalli said that he had to go to the village as it was late. A-1 told him that he would take him to his village even at 1 a.m. and not to worry. Then the deceased Puttaraju said that he had a room at Hassan and they could go there. A-1 paid the bill of Rs.39.75 and they went to that room in the Housing Board colony. The other portion of the building was let out to a tenant. After reaching the room at about 10 pm. A-1 removed his shoes and he invited the deceased to come along with him as he wanted to ease himself. PW-1 remained in that room and A-1 and the deceased went out and, within 5 minutes, the deceased Puttaraju came to the room holding his stomach and he had two knife injuries one on the right side of the stomach and the other on the right nipple. Then the deceased said that A1 told him Dasegowda (A2) had sent him to finish him. The deceased was immediately taken in a rickshaw by PW-1 to S.C. Hospital, Hassan. While he was bringing him in the auto, the deceased pointed out a drainage situated near the house of one Advocate stating, that, that was the place of occurrence. At the S.C. Hospital, Dr.N.L. Viswanatha (PW11) who was working as medical officer at Hassan, examined and treated the deceased and he found two injuries. He issued the wound certificate as per Ex.P-8. He gave intimation to the Extension Police Station about the injured as per intimation Slip Ex.P-9. He also referred the patient to the surgeon. Dr. Puttaraju (PW-18) also examined the injured. S.B. Abdul Rawoof (PW-15) Head Constable 58 who was working at Extension Police Station and who was in-charge of the police station at that time, immediately rushed to the hospital on getting intimation and in the presence of PW11, he recorded the statement of the injured. He returned to the police station and registered a case in Cr.No. 16/88 for the offence under Section 307, IPC. He has produced the bloodstained cloth of the injured before the PSI R. Puttaswamaiah (PW17). PW17 took up further investigation and he seized the bloodstained shirt MO-4 as per the panchanama Ex.P-16. Shivanna (PW-16) is a witness to this panchanama which is drawn on 2.2.1988 from 7.15 a.m. to 7.45 a.m. in the police station. The case sheet regarding the injured is as per Ex.P-18. PW1 after admitting the injured to the hospital went to the village of the deceased i.e., A. Guduganahalli which is at a distance of 29 KMs. from Hassan and he reached the village at about 12 O' clock in the midnight. He informed the parents and brother of the deceased about the incident. PW1 and 5, father of the deceased came to Hassan and on the doctor's advice they shifted the injured in a car to Bangalore and admitted him in Victoria hospital at about 6 a.m. PW5 told PW1 that he would bring his daughter and son-in-law who were at Bangalore. Jayamma (PW4) is a daughter of PW5 and sister of the deceased. She resides at Bangalore with her husband. PW5 went and informed her about the incident. PW4 also came to the hospital. The deceased after regaining consciousness, told PW4 and PW5 that A-1 told him that because of the land dispute between PW5 and A-2 he had come to finish him. The deceased succumbed to the injures on 5.2.88 at about 2 a.m. Dr.S.B. Patil (PW13) who was working as Lecturer in the Department of Forensic Medicines in BMC College attached to Victoria Hospital received the dead body along with requisition from the Victoria hospital police through Nagaiah (PW 9) who was police constable 7623, to conduct post mortem. He conducted post mortem from 11.15 am to 1.15 pm. He has issued his report as per Ex.P-11. Ex.P-12 is the requisition along with particulars as per Ex.P. 13. Subsequently inquest proceeding was conducted. PW 14 is one of the witnesses to the inquest panchanama Ex.P-14. After completion of investigation charge sheet was filed. As the accused persons pleaded innocence trial was held. As noted above, A2 died during trial. The trial court found the evidence to be inadequate and therefore directed acquittal. In appeal, the High Court found that the analysis done by the trial court was erroneous and the conclusions were based on presumptions and surmises. Accordingly, the present appellant was convicted for offence punishable under Section 304, Part II, IPC and was sentenced to undergo five years imprisonment.