IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16th DAY OF DECEMBER, 2017 PRESENT THE HON’BLE MR. JUSTICE B. VEERAPPA AND THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR CRIMINAL APPEAL NO.1200 OF 2012 BETWEEN:
Anantha @ Ananda, Aged about 29 years, s/o Saganaiah, r/o Hulugundi village, Madihalli Hobli, Belur Taluk, Hassan District. …Appellant (By Sri. D. Nagaraja Reddy, Advocate) AND:
State of Karnataka, By Hassan Town Police, Hassan. …Respondent (By Sri. Vijayakumar Majage, Addl. S.P.P.) This Criminal Appeal is filed under Section 374(2) Cr.P.C., praying to set aside the judgment and order of conviction dated 27.03.2012 passed by the P.O. and Addl. Sessions Judge, Fast Track Court-I, Hassan in S.C.No.23/2011 – convicting the appellant/accused for the offence p/u/s 302, 201 of IPC, etc.
This Criminal Appeal coming on for hearing this day, Sreenivas Harish Kumar, J., delivered the following:
JUDGMENT The accused has preferred this appeal. The Fast Track Court, Hassan, convicted the accused for the offences under Sections 302 and 201 of Indian Penal Code (for short ‘IPC’) and sentenced him to undergo life imprisonment and pay a fine of Rs.2,000/- with a default clause of one year imprisonment for the offence under Section 302 IPC and imprisonment for a period of three years for the offence under Section 201 IPC.
2. The case of the prosecution in brief is as follows:-
On 11.10.2010, Kantaraju, son of deceased had gone to Belur and he returned to his house at bout 6.00 p.m. He did not see his mother namely Savithramma in the house. He enquired with his brother Narayan about his mother and he too told that he did not know about her whereabouts. So they all started searching for her and at about 7.00 p.m., they were able to trace the dead body of Savithramma. When they saw the dead body, it was in almost in a partially sitting posture, hung to a tree branch. PW-2-Kantaraj reported this incident to police, who, in the first instance registered a complaint in UDR.No.21/2010 under Section 174 (C) of Criminal Procedure Act (for short ‘Cr.PC). On 12.11.2010 another son of the deceased viz., Narayan i.e., PW-1 made another complaint stating that the accused had made a confession before one Mahesh that he had done away with the life of Savithramma as she had helped his wife to elope with somebody else. This was reported to the police and therefore the police registered a complaint against the accused in Cr.No.205/2010 for the offence under Sections 302 and 201 of IPC. In the course of investigation, the accused was said to have given voluntary statement disclosing that he had committed the death of Savithramma and that he had pawned the gold ornaments of the deceased in a pawn broker shop belonging to PW-7. The investigating officer was able to recover the gold ornaments of the deceased on the basis of this voluntary statement, and after completing the investigation, charge sheet came to be filed against the accused for the said offences.
3. The accused was charged for the offence under Sections 302 and 201 of IPC. The prosecution examined 16 witnesses, PW-1 to PW-16 and got marked 18 documents as per Ex.P.1 to Ex.P.18 and 8 material objects as per MOs.1 to 8. The trial court also recorded the statement of the accused under Section 313 of Cr.P.C. After appreciating the evidence, the trial court, on being convinced that the charges against the accused were proved beyond reasonable doubt, convicted him for the said offences.
4. Assailing the judgment of the trial court, the learned counsel for the appellant / accused argues that the trial court has committed an error in relying upon the evidence of PW-7 Yeshpal Singh and evidence of PW-11. According to PW-11 accused made a confession before him when he was in a drunken state. It has come in the evidence that there was enemity between the families of PW-1 and 2, and the accused. Extrajudicial confession is a weak piece of evidence and therefore relying upon the evidence of PW-11, the trial court should not have come to conclusion that the accused was involved in the crime. He also tries to point out some discrepancies in the evidence of PW-7. It is his argument that when the police went to the shop of PW-7, the latter produced a receipt book in which the name of one Ravi was written. The jewels were actually pledged by Ravi and not the accused. The investigation officer, should have ascertained as to who actually pledged the jewels. Even the evidence of PW- 13, the witness to recovery mahazar shows that he went to the shop after the entire mahazar had been drawn. Therefore the evidence of PW-13 does not help the prosecution with regard to the seizure of the jewels. The learned counsel for the appellant also submits that the death of the deceased could be a case of suicide or she could have been killed by somebody else. Then he tries to point out some discrepancies in the receipt numbers. In the receipt issued by PW-7 the number is mentioned as 03337 and the weight of the ornaments recovered is written as 25.5 grams, whereas Ex.P.6 bears the receipt No.A3337 and weight of the jewels is written as 24 grams. According to him this is a major discrepancy which shakes the prosecution case and should not have been ignored by the trial court. The accused was falsely implicated in the case. The trial court should not have convicted the accused.
5. On the other had Sri. Vijayakumar Majage, Addl. State Public Prosecutor argues that the trial court has properly appreciated the evidence. There are some discrepancies as pointed out by the learned counsel for the appellant, but they are very trivial and do not shake the prosecution case in any manner. He also submits that though extra judicial confession is a weak piece of evidence, there is no rule that they are to be ignored totally. In this case there is consistent evidence with regard to extrajudicial confession made by the accused before PW-11 Mahesha. There may be some discrepancies in the evidence of PW-11, but it does not take away the evidentiary value in his testimony. He further argues that only on the basis of disclosure made by the accused, the police were able to recover the gold ornaments pledged by the accused in the shop belonging to PW-7. This part of the evidence has remained unshaken. He also refers to one answer given by the accused when he was examined under Section 313 of Cr.P.C. To question No.55, the accused has answered that he was taken to the shop of PW-7 and therefore the other part of the evidence with regard to the recovery made by the accused from the shop of PW-7 becomes believable automatically. Therefore the recovery provides corroboration to the evidence of PW-11. The prosecution witness have not been discredited in the cross examination. The evidence given by PW-2 is very natural. The UDR was registered at the earliest possible time. Just because in the first complaint, i.e., the UDR, nothing has been written about the gold ornaments worn by the deceased, it cannot be said that the death of Savithramma has to be doubted. In this regard, it was his argument that at the time when PW-1, PW-2 and others went in search of her, whether they observed the jewels or not is not a matter to be taken into consideration; it is a matter which comes to fore mainly during the investigation and in this regard there is consistent evidence. Therefore the trial court has rightly come to conclusion that the prosecution has been able to prove the offence charged against the accused. He also refers to the evidence given by PW-10, the doctor who conducted the post-
mortem examination and argues that his evidence shows that it is a clear case of strangulation, it was not a case of suicide. He has also given a report as per Ex.P.12. This part of the evidence of doctor PW-10 has remained unchallenged. Therefore he argues that in all respects, the judgment of the trial court is sustainable.
6. Having heard the learned counsel for the appellant and the learned Addl. SPP, we are of opinion that since the learned counsel for the appellant has argued that the death could be a case of suicide, we think it appropriate to deal with this matter in the first instance. Ex.P.11 is the post-mortem report. PW-10, the doctor has clearly noted in Ex.P.10 that there was a ligature mark encircling the neck of the deceased. It was ante-mortem. In Ex.P.11 it is mentioned that the cause of death was due to asphyxia as a result of hanging. The investigation officer appears to have written a letter to him as per Ex.P.13 seeking some clarification. Two questions were placed before PW-10 for clarification. Ex.P.12 is the opinion given by PW-10 to the queries raised by the investigation officer. To the 1st question PW-10 has clearly answered that there is possibility of such a ligature mark being formed if the deceased had been strangulated from behind. He says that it is a case of homicidal hanging or lynching. Now if we peruse the evidence given by PW-10, it is found that this witness has not been discredited in the cross- examination. The prosecution has also produced photographs to show the position of the dead body. Seeing these photographs, PW-10 has answered that it was a case of homicidal hanging. Even he has answered further that chances of committing suicide can be ruled out by seeing the height of the branch of the tree from the ground level. The court question is also put to this witness, and this question, in our opinion is relevant. To this court question also PW-10 has clearly answered that for the formation of ligature mark, it is not necessary that the body must be in a hanging position. Even if the body is hung partially and if any part of the body touches the ground, ligature mark will appear. Therefore overall assessment of the evidence given by PW-10, the post mortem report and the photographs, a clear inference can be drawn that it is a case of homicidal death, to be more clear it is a case of strangulation.
7. It is true that there are no eye witnesses to the incident. PW-1 Nayaran, is one of the sons of the deceased. His evidence only shows that when his mother did not return to the house on 11.10.2010, he and his brother and other family members went in search of her. When they went to their agricultural land they found the dead body of his mother under a tree. He says that one end of the rope had been tied to the neck of the dead body and the other end of the rope had been tied to the branch of the tree. He says that he made a complaint to the police. Further it is evidence of PW-1 that one Padma, wife of the accused had eloped with some body else and suspecting the involvement of the deceased in the eloping, the accused had quarreled with the deceased and in this background, he committed the murder of his mother. His evidence also shows that there was no cordial relationship between his family and the accused.
8. PW-2 Kantaraju is the one who reported the incident to the police in the first instance. He also speaks in tandem that PW-1. PW-4 is the husband of the deceased. His evidence just discloses that his wife had been murdered by the accused. He says that the accused might have committed murder of his wife for the purpose of robbing her ornaments. Another material evidence is PW-7, Yeshpal Singh. He has a pawn broker shop by name Mahalakshmi Bankers at Hagare village. His evidence discloses that the accused himself had come to his shop and pledged a chain, a pair of ear studs and mangalya, which are all marked as M.Os. 2 to 4. He identified the accused in the open court. His further evidence is that the accused himself came to his shop saying that his name was Ravi and pledged the M.Os.2 to 4 in his shop and borrowed an amount of Rs.25,000/- from him. He stated that after lending money of Rs.25,000/-, he issued him a receipt. In the examination-in-chief itself, he has clearly stated that the accused told his name as Ravi, s/o Earaiah Heggahalli. Ex.P.7 is the chit which contains the number A3337 bearing date 11.10.2010. Ex.P.6 is a book maintained by him for entering the transaction.
9. PW-11 is the prime witness. It is through him that the involvement of the accused in the crime came to fore. His evidence is that on the date of death of Savithramma, he had gone to Hagare village for bringing diesel. At that time he went to a liquor shop where accused was also there taking liquor. At that time accused himself told him that he was very happy on that day, after taking the liquor they both returned to their village by walk as they missed the bus. On the way the accused told him that since he was very happy, he consumed liquor and at that time PW-11 asked him the reason for being so much happy and that time, the accused said that since the deceased had helped his wife to elope, he had enemity against her and that he killed her for that reason. He also revealed before PW- 11 the manner in which he committed the murder of the deceased. PW-11 has stated that he immediately informed the matter to PW-1 Narayan over the phone. The cross-examination of this witness does not disclose any attempt being made by the defence counsel to discredit him. A suggestion given to him that he had deposed falsehood just because he was working with one Devaraj, the brother of the deceased has been refuted by PW-11.
10. It is true that PW-11 has stated that the police recorded his statement the next day after the death of Savithramma. It is for this reason that the learned counsel for the appellant argued that the evidence given by PW-11 contains lot of discrepancies. This matter will be dealt with little later.
11. PW-15 is the investigation officer whose evidence discloses that the accused was produced before him at about 8.00 a.m. on 13.11.2010. He arrested the accused. He has stated that the accused gave voluntary statement before him and at that time he disclosed that he would show the place of incident and also the shop where he had pledged the gold ornaments worn by the deceased. On the basis of this evidence, PW-15 took the accused to Hagare village and from there to the shop of PW-7 and recovered the ornaments said to have been worn by the deceased by drawing the mahazar in the presence of one Partha and Kumara.
12. We do not find it necessary to refer to the evidence of other witnesses because they do not help so much.
13. On reappraisal of the evidence we find that at the time when the death was reported to the police for the first time, neither PW-1 nor PW-2 knew about the involvement of the accused in the murder of their mother. The police just registered a case of unnatural death. It is after a month i.e., on 12.11.2010 that another complaint came to be lodged by PW-1 after coming to know from PW-11 about the involvement of the accused. So the question what actually arises is whether the evidence of PW-11 has to be disbelieved because his evidence is in the nature of extrajudicial confession. It is well established principle that extrajudicial confession is a very weak piece of evidence and it can be believed only if there is corroborative evidence. It is true that in the evidence of PW-11 as mentioned supra, there are some discrepancies. But according to prosecution, PW-11 came to know from the accused a month afterwards. We do not think that this discrepancy is very significant that goes to the root of the matter. It has to be mentioned here that PW-11 was examined in the court about 2 years after the incident. Because of long gap of time, he might have faltered while giving the date when actually he came to know about the incident from the accused. But it was from his evidence that the involvement of accused came to light. Another important factor to be mentioned here is that PW-11 Mahesha is related to the accused as well as PW-1 and 2. Therefore chances of false implication of the accused by PW11 are very remote and can be ruled out. If we examine the evidence of PW-11 from another angle, it becomes very clear that investigation officer was able to recover MOs. 2 to 4 only after PW-1 made a complaint to the police again for the 2nd time after getting information from PW-11. This recovery was made at the instance of disclosure made by him while giving voluntary statement. The evidence of PW-7 cannot be said to be unbelievable. PW-7 provides corroboration to the evidence of investigation officer with regard to the recovery of MOs.2 to 4. Therefore we are of the opinion that the extrajudicial confession made by the accused before PW-11 finds corroboration from the evidence of PW-7 as well as the recovery of MOs.2 to 4 by drawing the mahazar as per Ex.P.8. The trial court judge has discussed the evidence in this regard at length by giving cogent reasons. We do not find that the discussion so made by the learned trial judge is faulty. The other discrepancies that the learned counsel for appellant tried to make out while arguing are not material and significant deserving discussion here. Therefore, we come to conclusion that the trial court has not committed any error in holding the accused guilty of the offence both under Sections 302 and 201 of IPC.
14. Lastly we think it proper and necessary to examine whether there are mitigating circumstances to bring down the offence to Section 304 of IPC from Section 302 IPC. The clear case of the prosecution is that because the deceased helped the wife of the accused to elope with somebody, the accused had developed enemity against deceased. The husband of deceased gives another reason for the death of the deceased, but it is not acceptable. Finding her alone in the fields, he went there, strangulated her and hanged the dead body to a branch of a tree to give an impression that it was a case of suicide. Therefore the intention of the accused becomes quite clear to do away with the death of Savithramma. After perusing the entire material and also the photographs produced by the prosecution, we come to the conclusion that this is a clear case of murder. Even by looking at photographs, an ordinary man will easily come to the conclusion that it is not a case of hanging to commit suicide especially by noticing the knot of the noose, being in the front of the neck. In the case of hanging, the knot will be usually seen in the back of the neck portion. Moreover the ligature mark appears completely around the neck. This is the evidence of doctors too. So the intention of the accused becomes very clear that he had clear intention of causing her death to take revenge against her. We find no reason to differ from the view expressed by the trial court. Hence, we confirm the judgment of the trial court and dismiss the appeal.
Sd/- JUDGE Sd/- JUDGE sd