Mr Jayanth vs The State Rep

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 PRESENT :

THE HON’BLE MR.JUSTICE K.N.PHANEENDRA AND THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.600 OF 2017 BETWEEN:

Mr.Jayanth S/o late Jarappa Devadiga, Aged about 32 years, R/o Mathrusri Nilaya, Kuvedapadi, Yedapadavu Post, Thenka Yedapadavu Village, Mangaluru Taluk, Pin-574 144. .. Appellant ( By Sri Jeevan K., Advocate ) AND:

The State Rep.by Police Inspector, Moodabidri Police Station, Moodabidri – 574 227 Represented by the State Public Prosecutor High Court Buildings, Bengaluru – 560 001. .. Respondent (By Sri.I.S.Pramod Chandra, SPP-II) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment and order of conviction dated 9.2.2017/14.2.2017, passed by the I Addl. District and Sessions Judge, D.K., Mangaluru, in S.C.No.152/2012, convicting the appellant/accused for the offence punishable under Sections 302, 307, 326 and 506 of IPC. The appellant/ accused is sentenced to undergo imprisonment for life and pay fine of `5,000/-, in default to pay fine, to undergo further imprisonment for a period of six months for the offence punishable under Section 302 of IPC, to undergo imprisonment for life and pay fine of `5,000/-, in default to pay fine, to undergo further imprisonment for a period of six months for the offence punishable under Section 307 of IPC, to undergo rigorous imprisonment for a period of seven years and pay fine of `3,000/-, in default to pay fine, to undergo further imprisonment for a period of three months for the offence punishable under Section 326 of IPC, and to undergo imprisonment for a period of one year and pay fine of `1,000/-, in default to pay fine, to undergo further imprisonment for a period of thirty days for the offence punishable under Section 506 of IPC. The sentence of life imprisonment shall run concurrently.

This Criminal Appeal coming on for hearing this day, Dr.H.B.Prabhakara Sastry, J., delivered the following:

J U D G M E N T The present appellant who was accused in S.C.No.152/2012, in the Court of I Addl.District & Sessions Judge, Dakshina Kannada, Mangaluru, (hereinafter for brevity referred to as `trial Court’), has challenged the judgment of conviction dated 09.02.2017 and order on sentence dated 14.02.2017, wherein he is convicted for the offences punishable under Sections 302, 307, 326 and 506 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC’), and sentenced him to undergo imprisonment for life and to pay fine of `5,000/- and in default of payment of fine, to undergo further imprisonment for a period of six months for the offence punishable under Section 302 of IPC, to undergo imprisonment for life and to pay fine of `5,000/- and in default of payment of fine, to undergo further imprisonment for a period of six months for the offence punishable under Section 307 of IPC, to undergo rigorous imprisonment for a period of seven years and to pay fine of `3,000/- and in default of payment of fine, to undergo further imprisonment for a period of three months for the offence punishable under Section 326 of IPC and to undergo imprisonment for a period of one year and to pay fine of `1,000/- and in default of payment of fine, to undergo further imprisonment for a period of thirty days for the offence punishable under Section 506 of IPC.

2. The prosecution case commences with PW-36 – Ramesh Kumar, a Police Sub-Inspector of the respondent-police station receiving a telephone call on 20.6.2012, at about 11.00 p.m. from the Community Health Centre, Moodabidri, by its doctor Smt.Rashmi. He was informed over the telephone that a patient by name Jayanthi in the hospital was murdered by her husband. Immediately, the Police Officer, along with other staff, rushed to the hospital and saw the dead body of deceased Jayanthi in a Ward of the hospital and faculty were treating injured child of said Jayanthi. He enquired about the accused and came to know that accused had run away from the place. In the meantime, he had telephoned to his higher officer i.e., Police Inspector of the respondent-police station on the same night, who also visited the scene of offence along with dog squad and finger print experts. After studying the scenario, he had asked the attendants/family members of the deceased to lodge a complaint. Accordingly, PW- 1 - Kum.Shalini, accompanied the said PW-39, the Police Inspector, to the police station and lodged the complaint as per Ex.P-1.

The summary of the said complaint is that one Smt.Jayanthi, the wife of the accused herein, was admitted to the said hospital on 17.6.2012 for delivery of child. On 18.6.2012, in the morning, said Jayanthi gave birth to a male child. She was under treatment in the post-delivery Ward. To attend said Jayanthi, her mother Smt.Rajeevi and complainant – Kum.Shalini, who is the younger sister of the deceased, were there in the hospital. On 20.6.2012 in the evening, after taking dinner, while they were taking rest, the accused who is the husband of said Jayanthi went there and started arguing with his wife in high tone. While the complainant and her mother were watching, the accused took out a sickle from a plastic bag which he was carrying with him and started assaulting his wife Jayanthi. At the assault of her husband and being scared, said Jayanthi ran away from the Ward with bleeding injuries caused by the accused and she started yelling. At that time, the accused with an intention to kill his newly born child, lifted the child along with cloth in which it was wrapped with the same sickle and threw it on the ground. Then he chased his wife Jayanthi and inflicted some more blows on her with the sickle he was possessing and caused severe injuries upon her, to which, she succumbed on the spot. When the complainant, her mother and other inmates in the hospital, including the patients and their attendants, gathered around, the accused threatened them of dire consequences by showing the sickle which he was possessing. Immediately after committing the incident, he ran away from the main door of the hospital.

The complainant in her complaint has also stated that the accused was in love with deceased Jayanthi and before their marriage, Jayanthi conceived out of their love affair. After she became pregnant of about four or five months, the accused refused to marry her. However, at the intervention of the elders in the family and other people, he married her in Marigudi Temple at Moodabidri and the said marriage was also registered with the Registrar of Marriages. After that, for about a week, he stayed in the maternal home of his wife and was attending Maison work along with his brother-in-law i.e., younger brother of the deceased. After that, stating that he got another employment in a garage at Mangaluru, he left the place, but, he did not return. It is only after himself knowing that his wife Jayanthi gave birth to a child, he visited the hospital and committed the act of killing his wife and attempting to kill his son. The said complaint was registered in the respondent- police station Crime No.118/2012, against the accused for the offences punishable under Sections 302, 307, 506 of IPC.

3. After completion of investigation, the respondent-police filed charge sheet against the accused for the alleged offences. Since the accused pleaded not guilty, trial was held, wherein the prosecution got examined thirtynine witnesses as PW-1 to PW-39 and got marked documents from Exs.P-1 to P-58 and material objects from MO-1 to MO-17. On behalf of the accused, two witnesses were examined as DW-1 and DW-2 and got marked one document at Ex.D-1. After hearing both side, the trial Court by its impugned judgment of conviction dated 9.2.2017 and order on sentence dated 14.2.2017, convicted appellant/accused for the offences punishable under Sections 302, 307, 326 and 506 of IPC and sentenced him accordingly. It is against the said judgment of conviction and order on sentence, the appellant/accused has preferred this appeal.

4. The lower Court records were called for and the same are placed before this Court.

5. Heard the arguments from both side and perused the materials placed before this Court.

6. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.

7. The learned counsel for the appellant/accused in his brief arguments submitted that PW-1 and PW-2 are the relatives of the deceased, as such, they are interested witnesses. Since they being the interested witnesses, their evidence ought not to have been given much weightage by the trial Court. He also submitted that there is no consistency in the evidence of remaining alleged material witnesses of the prosecution. The trial Court has totally ignored of the fact that the accused was under depression, as such, was not in a stable mind at the time of the alleged incident. If the said defence of the accused which has been established in the evidence of DW-1 and DW-2 is taken into consideration, it is clear that conviction of the accused for the offences punishable under Sections 302 and 307 of IPC won’t sustain.

Learned counsel further submitted that there is not an iota of evidence to show that the accused intended to kill his infant child and that he has committed any act in the execution of his alleged intention to kill child. Merely because the child is said to have sustained injuries in the incident, by that itself, it cannot be inferred that the accused committed any act which can be called as an attempt to cause the death of the minor child.

8. Learned State Public Prosecutor-II in his argument submitted that the case on hand is one such case where all important and material witnesses have uniformly supported the case of the prosecution. The evidence of material witnesses have come out in such a consistency that there is no reason to suspect their evidence. The co-patients staying in the hospital at the relevant point of time have uniformly stated about the incident exactly in the manner what they have witnessed. As such, the consistent evidence of eye witnesses has beyond reasonable doubt proved the guilt of the accused.

9. Among thirtynine witnesses examined from the prosecution side, PW-1 Kum.Shalini, who is admittedly younger sister of the deceased and also the complainant in the case, in her examination-in-chief has stated that her sister deceased Jayanthi, who is wife of the accused in this case, gave birth to a male child in Moodabidri Community Health Centre, on 18.6.2017, in the morning hours. On 20.6.2012, while herself, joined by her mother, were sleeping on the side of the bed where her sister Jayanthi was laid, the accused went there on the pretext of visiting his wife. The Staff Nurse on duty had allowed him to visit the deceased since he told them that he was intending to meet his wife for a short while. After meeting his wife Jayanthi, he started objecting her on small matters and questioning about she knowing his details even prior to their marriage and during the said conversation, he took out a sickle from a plastic bag which he was carrying with him and lodged a blow on the neck of his wife. In order to overcome from such assault, the injured Jayanthi ran away to the neighbouring Ward. In the said process, the blood spilled from the injured part was scattered on the ground. The accused then lifted his infant child which was wrapped in cloth and threw it on the ground, at which, the child started crying sustaining injuries on its hand and near the ear. The accused committed the said act only with an intention to kill the child. Thereafter, the accused holding the same sickle in his hand, ran to the neighbouring Ward where his injured wife had fallen and inflicted several blows from the same sickle on her hand, head, forearm, back portion and waist. Due to the several injuries inflicted upon her by the accused, she sustained bleeding injuries and died on the spot.

The witness has also stated that several inpatients who had also admitted in the said hospital and their attendants to them and the Staff Nurses and other people who were in the Ward were all witnesses to this incident. The accused showing them the sickle which he was holding in the hand, threatened them of their life in case they go nearer to him. Because of the fear, they could not proceed further. After inflicting such injuries and causing the death of his wife and causing injury to the child, the accused along with sickle which he was having, ran away from the main door of the hospital.

PW-1 has further stated that the accused and her sister deceased Jayanthi earlier were loving each other. Because of their mutual love, said Jayanthi conceived and became four months pregnant. Her request to marry her was rejected by the accused. However, at the intervention of her family members and other elders, the accused agreed to marry her. Accordingly, on 1.3.2012, in Marigudi Temple at Moodabidri, the accused married Jayanthi. The said marriage was also registered with the Registrar of Marriages. For a week after their marriage, he was staying with his wife in her house and thereafter, on the pretext of he getting another job at Mangaluru, left the place, but, did not return, except coming to the hospital on the date of the alleged incident.

The witness has also stated that, in that regard, she has lodged a complaint with the respondent-police station, which she has identified at Ex.P-1. She has also stated that the respondent-police visited the hospital and observed the scene of offence and seized the articles found in the spot, including the ornaments worn by the deceased and the clothes found on the dead body, the bed sheet, the sample of the blood fallen on the floor of the hospital. The witness has identified those objects at MO-1 to MO-8. Stating that she could identify the sickle used by the accused, the witness has identified the sickle and got it marked at MO-9. The witness has also stated that on the date of the incident, the accused was wearing a full-arm shirt and jeans pant which she has identified and marked them as MO-10 and MO-11. She also identified and got marked the sample blood collected from the spot at MO-12.

She was subjected to a detailed cross-examination from the accused side, wherein she adhered to her original version.

10. PW-2 – Smt.Rajeevi, mother of the deceased, has followed the evidence given by her daughter i.e., PW-1/ complainant. PW-2 also has stated that her daughter Jayanthi had become pregnant prior to her marriage by the accused and she gave birth to a child in the hospital. About the incident, the witness has stated that on the date of incident, in the night, while she along with her another daughter Kum.Shalini (PW-1) were attending the deceased Jayanthi in the hospital, the accused having come over there, took out a sickle from the cover which he was possessing and from the said sickle, he inflicted injuries on her daughter Jayanthi and when she ran away to the neighbouring Ward, he chased her and butchered her causing her murder. She also stated that the accused also threw their infant child on the floor by using the same sickle. He also threatened the inmates in the hospital, including the Staff Nurses of dire consequences by showing them the sickle which he was possessing.

The witness adhered to her original version even in her detailed cross-examination from the accused side.

11. PW-3 – Smt.Mallika, PW-5 – Smt.Rehamat and PW-6 – Smt.Surekha, are the co-patients in the same hospital in the Ward and the adjoining Ward where deceased Jayanthi was admitted. PW-4 – Smt.Shakuntala, is an attendant to PW-3 – Smt.Mallika. All these witnesses uniformly and unequivocally have stated that at the time of alleged incident, they were in the hospital as patients and that PW-4 was there in the hospital attending PW-3, the another patient, at that time, in the night, the incident has happened.

PW-3 has stated that since she was in neighbouring Ward, she was sleeping and hearing hue and cry, she got up in the midnight and noticed that in the neighbouring Ward, Jayanthi was murdered, sustaining several inflicted injuries upon her. However, PW-4 has stated that she has seen the incident, as such, she is an eye witness. She has stated that, on that night, at about 11.00 p.m., the accused entered their Ward and assaulted Jayanthi with the sickle which he was possessing. The said assault landed on the forearm of Jayanthi. Due to the said injury and scared by the accused, the injured Jayanthi ran to the neighbouring Ward. The accused also assaulted the child with sickle, which resulted in injuries to hand and ear of the child and the child had fallen on the ground. The witness also stated that the accused chased Jayanthi to the neighbouring Ward and there he butchered her with the same sickle which he was having, due to which, Jayanthi succumbed on the spot. She also stated that the accused threatened all the other people, including herself of dire consequences by showing them the sickle which he was having. She has stated that she has witnessed the entire incident in the electricity light which was there in the Ward.

The evidence of PW-5 and PW-6 are also on the same line as that of PW-4. They too have stated that they have witnessed the incident wherein the accused assaulted his wife, who was inpatient in the hospital, with the sickle and has committed her murder and also inflicted injuries on their infant child and threw it on the floor. These witnesses, apart from stating that accused threatened them all by showing sickle, have also stated that they have seen the incident in the electricity light that was there in the said Ward.

Interestingly, in none of the cross-examination of these witnesses, any suggestions denying the occurrence of the incident on the date, time and place stated by the witnesses were made. It has not been denied in the cross-examination of these witnesses that the incident of Jayanthi having been killed with a sickle in the female Ward of Community Health Centre, Moodabidri, has not been denied. The infant child sustaining injuries by the act of the assailant has also not been denied. On the other hand, in the cross-examination of PW-5, it was suggested that she was on the bed in the hospital, as such, she did not got up from the bed and went to see the incident. Similarly, in the cross- examination of PW-6 also, a similar suggestion was made that the witness was asleep on her bed, as such, she does not know anything about the incident. Thus, by making such suggestions, the accused has admitted the presence of those witnesses in the place of incident and at the time of the incident.

12. PW-7 – Smt.Susheela and PW-8 – Smt.Shalini, in their evidence have stated that deceased Jayanthi was inpatient and was under their care in their hospital at Moodabidri on 20.6.2012. On that day, though visiting hours was closed and these people have bolted the door from inside where Jayanthi was lodged, the accused went there and knocking at the door, requested these Nurses for permitting him to see and talk to his wife Jayanthi for a few minutes. Since he was claiming to be the husband of said Jayanthi, the patient, and wanted to see her for few minutes, these Nurses allowed him to enter inside and to talk to his wife, however, cautioning him to leave the place at the earliest. Accordingly, entering inside the Ward, the accused approached the deceased. Both these witnesses have stated that while they were in Nurse’s room, they heard the yelling noise from the Ward where Jayanthi was admitted. These people came running to the said Ward only to see that accused was chasing his injured wife to the neighbouring Ward and approaching his wife Jayanthi in the neighbouring Ward, the accused inflicted few more injuries with the sickle which he was holding. He also threatened several people who gathered there by showing the same sickle.

Both these witnesses have stated that in the Ward where Jayanthi was admitted, the accused had also thrown his infant child on the floor causing injuries to it. After the accused ran away from the place, these people informed the doctor and the police. The injured infant was sent to hospital at Mangaluru for further treatment. Both these witnesses have identified the articles at MO-1 to MO-8 as the one worn by deceased Jayanthi and they have also identified the dress worn by the accused at the time of the incident at MO-10 and MO-11, and more particularly, the sickle at MO-9 as the one used by the accused at the time of commission of crime.

Both these witnesses have stated that they have seen the incident in the electricity light that was available in the hospital and the Ward. All these alleged eye witnesses have identified the accused in the Court as the one who committed the alleged act as narrated by them.

13. PW-9 – Vijayakumar and PW-10 – Kumari Manjula Shetty, have stated that the inquest panchanama in the case has been drawn in their presence by the Investigating Officer as per Ex.P-13.

14. PW-11 – Krishna, the younger brother of the deceased has stated about the previous love affair between deceased Jayanthi with the accused and Jayanthi conceiving during the said period before her marriage with the accused. He has also stated about the accused unwillingly marrying Jayanthi at the intervention of elders in the family and other people.

About the incident, the witness has stated that though he was not an eye witness to the incident, but, immediately after the incident in the night at about 12.00 O’Clock, he came to know about the incident by none else than his younger sister Shalini, who was attending to the deceased in the hospital. Immediately he also rushed to the hospital and saw the dead body of his sister who had sustained several inflicted injuries upon her. He has stated that the child had also sustained injuries in the act. The witness has stated that it was the accused who has committed the murder of his sister. Even this witness has also identified the articles at MO-1 to MO-8 and MO-12.

15. PW-12 – Dinesh, a neighbour of deceased Jayanthi has stated that the marriage of deceased was performed with the accused in Marigudi Temple at Moodabidri about three and half years prior to his date of evidence. The marriage was registered on the same day with the Registrar of Marriages. The witness has also stated that due to their love affair prior to the marriage, Jayanthi was conceived by the accused and became pregnant. It was only thereafter, her marriage was performed with the accused. For few days after the marriage, the accused was staying in his wife’s house along with his wife and attending Maison work with his brother-in-law. Thereafter, he left the house on the pretext that he has got another work at Mangaluru. The witness has stated that he came to know about the incident in the same night when it occurred and he too had visited the hospital and saw the dead body of Jayanthi with injuries inflicted upon her.

16. PW-13 – Prakash Shetty and PW-14 – Raju Poojary, have stated that at the request of the complainant, they visited the respondent-police station on 25.6.2012, where the accused was shown to them by the police. The accused led them along with police in the police jeep to a place called Mastikatte, which was at a distance of about 4 KMs. After going about 2 KMs. from Moodabidri, the accused asked to stop the jeep and after getting down from the jeep, he went near a heap of small boulders and stones and shifting the stone aside, he took out a sickle and produced the same before these people. The said sickle was stained with the blood. The said sickle was seized by the police by drawing a seizure panchanama as per Ex.P-14. Apart from identifying the seizure panchanama at Ex.P-14, these witnesses have also identified the sickle at MO-9, as well the accused in the Court.

17. PW-15 – Ramesh Shetty, has stated that clothes of the accused were recovered at the instance of the accused in his presence on 25.6.2012, on which day, at the request of the police, he had accompanied the accused and the police to a village called Tenka Yedapadavu. The accused took these people to his house and entering the house, the accused took out a pair of clothes, which included a Blue and White striped shirt and a jeans pant stained with blood stating that the same was worn by him at the time of commission of crime. The accused also shown them and produced a parked motorcycle bearing registration No.KA-21-J- 1449, stating that the said vehicle was used by him on the said date to go to the place of the incident. The respondent-police drew a seizure panchanama as per Ex.P-27 and seized those articles. The witness has identified the clothes said to have been produced by the accused in the Court, which were marked as material objects.

18. PW-16 – Mahesh Kumar, has stated that while he was working as a Supervisor in SNDP Garage at Kannur, the accused was working in the said garage for a short duration from 29.3.2012 to 14.6.2012. Thereafter, bringing one Rakesh on 20.6.2012 to work in his place, the accused left the job. The witness has identified the accused in the Court.

19. PW-17 – Madhava Devadiga, has stated that he knows the accused who resides at a distance of half a kilometer from his house. Though he came to know about the news that the accused had committed murder, but, he did not know whom the accused was said to have murdered. The witness has further stated that after publication of the news of the murder, one day morning, he saw the accused in an unconscious stage near pumpset in their land. He knew that the accused earlier due to depression was admitted to Father Muller Hospital. Thus, he presumed that the accused had fallen unconscious with the same reason. He informed the police about the same, at which, the police visited the place and summoning 108-Ambulance, they shifted the accused from the said place.

20. PW-18 – Lokesh, has stated that he was running a garage for about twelve years, in which, for about three and half years i.e., till he joined the SNDP Garage, the accused was working under him. On 17.6.2012, once again the accused approached him (PW-18) offering to join in his garage. Then, after two days, he discontinued. However, it came in the news paper that the accused had committed the murder of his wife in the hospital.

21. PW-19 – Ashok Shetty, has stated that on 22.6.2012, the accused had made telephone call from a coin booth which he had installed in his shop in Mangaluru. The police had enquired him in the matter, before whom also, he has stated that the accused had made a call from coin booth in his shop.

22. PW-20 – Dr.Balakrishna Rao N.S., the Medical Officer working at Wenlock Hospital, Mangaluru, has stated that on 21.6.2012, at 02.00 hours, three days infant child was brought from Moodabidri Government Hospital to their hospital with the history of father of the said child assaulting the child. He noticed that the child had sustained abrasion on its chin, on its right wrist, pain on the left shoulder and right waist and also on the right side of the head. The Radiological test revealed the presence of fracture of left humorous and right side parietal bone. The witness has opined that those fractures were grievous in nature and remaining injuries were simple in nature, in which direction, he has issued a wound certificate, which the witness has identified at Ex.P-35.

23. PW-21 – Raghuram Prasad B., has stated that being the Sub-Registrar of the Marriages at Moodabidri, on 1.3.2012, he has registered the marriage of the accused with the deceased Jayanthi. The Marriage Certificate issued by him at Ex.P-36 has been identified by him.

24. PW-22 – Rayappa, the Chief Officer of Karkala Municipality, has stated that at the request of the Investigating Officer, he has furnished them the Certificate at Ex.P-37, certifying that Moodabidri Community Health Centre has been running in a building by the Government.

25. PW-23 – Vinay, has stated that he knew both the accused and his wife Jayanthi. About few days after the incident, at the request of the police, he joined the police and the accused. The accused took them to his house at a place called Yedapadavu and produced a shirt and pant from inside his house stating that those were the dress materials worn by him at the time of commission of crime. The dress materials were stained with blood. The police seized the same by drawing seizure panchanama as per Ex.P-27. The witness apart from identifying the said panchanama, has also identified the said dress materials at MO-10 and MO-12.

26. PW-24 – Ganesh, a cousin brother of deceased Jayanthi has also spoken about the premarital love affair between the deceased and the accused and their subsequent marriage at the instance of the elders. The witness has also stated about Jayanthi giving birth to a child in the Community Health Centre at Moodabidri on 18.6.2012 and he hearing the news of murder of Jayanthi on the night of 20.6.2012. The witness has stated that he has seen the dead body of Jayanthi and noticed the injuries inflicted on her person. He has also seen the injured child of Jayanthi in the hospital.

27. PW-25 – Rakesh, has stated that he knew accused and it was at the instance of the accused, he joined SNDP Garage only on 20th day of the particular month about three and half years prior to the date of his evidence. He has also stated that after admitting to the said garage, the accused settled his dues with the said garage and left his job there.

28. PW-26 – Shakir, a Scrap Merchant, has stated that on 20.6.2012, the accused joined by another person had been to his shop and there was a quarrel between them with respect to a dome of the motorcycle. Subsequently, he came to know about the alleged incident.

29. PW-27 – Sakku @ Shakuntala, has stated that she knew accused couple of years prior to the alleged incident. It was she who introduced accused to the deceased Jayanthi. Said Jayanthi became pregnant at the act of the accused. The family members of Jayanthi got them married to each other. The witness has also stated that the accused was not agreeable to the said marriage and he had expressed his displeasure in that regard before her. The accused has also informed her that his wife Jayanthi had given birth to a baby boy in Government Hospital at Moodbidri on 18.6.2012. The witness further stated that on 22.6.2012, morning at 9.15 a.m., the accused called her over phone from a coin booth and told her that he had killed his wife Jayanthi in the hospital at Moodabidri. Without continuing the conversation, he disconnected the contact.

30. PW-28 – Raju, the Head Constable of the respondent-police has stated that based on the instructions of his superior, he joined by his Police Sub- Inspector, noticed the accused near the pumpset in the house of one Madhava Devadiga. The accused was in semi-conscious stage. Suspecting that he had consumed some poisonous thing, these people shifted him to the hospital in 108-Ambulance. After recovery of the accused, they arrested him.

31. PW-29 – Dr.Rashmi M.N., the Medical Officer at Community Health Centre, Moodabidri, had stated that deceased Jayanthi was admitted in their hospital in the morning of 17.6.2012 in connection with labour pains. She was admitted as wife of one Sri Jayanth. On 18.6.2012, at about 8.17 a.m., she gave birth to a male child. She was scheduled to be discharged from the hospital on 21.6.2012. However, on 20.6.2012, after she (this witness) examined the said Jayanthi and her baby at about 7.30 p.m., left for her home, the Staff Nurses Shalini and Susheela were on night duty in the hospital. On the same night, one among the Staff Nurses i.e., by name Shalini, called her over the phone and informed that Jayanthi was being assaulted by her husband. Immediately, she informed the police and rushed to the hospital. She saw the dead body of Jayanthi fallen in the room which was close to the Labour Ward. The dead body was found in a pool of blood. After examining, she confirmed that the injured was dead.

The witness has stated that Jayanthi who was admitted in the neighbouring Ward was chased to an adjacent Ward and was assaulted. The baby of Jayanthi had also suffered some injuries. The said injured baby was referred to Wenlock Hospital, at Mangaluru. The witness has also stated that on that night, for attending the patient-Jayanthi, her mother and sister were also there in the hospital.

PW-29 has further stated that on the next day, she conducted the post mortem examination on the body of the deceased Jayanthi at the request of the police. During the post mortem examination, she noticed several injuries, including lacerated and incised wounds on the injured. Based on her examination on the dead body, she opined that cause of death was due to hypo-volemic shock due to severe blood loss as a result of damage to grade vessels resulting from assault.

The witness has also stated that on 27.12.2012, the Investigating Officer sent a sickle for her examination and opinion. After examining the said sickle and descriptions of injuries found on the deceased, she issued her final opinion as per Ex.P-39. She has opined that the assault injuries found on the body of the deceased which are mentioned in the post mortem report may be caused by the sickle which was shown to her by the Investigating Officer. The witness has also identified the said sickle in the Court at MO-9.

Even in her cross-examination, she adhered to her original version.

32. PW-30 – Chandrashekar K.T., an Assistant Engineer of Public Works Department, Mangaluru, has stated about he preparing the sketch of scene of occurrence of the offence which was shown to him by the police and submitting the sketch to the police, which sketch he has identified in the Court at Ex.P-41.

33. PW-31 – Kushalappa, Police Constable from Central Armed Reserve Police, Mangaluru, has stated that, in the early morning of 21.6.2012, based on the instructions of his superior, he visited the scene of offence which was at Government Hospital, Mangaluru, along with dog squad. The dog after smelling the place and articles shown to it, took these people near a garage which was a short distance from the hospital. In that regard, he has issued a report, which he has identified at Ex.P-42.

34. PW-32 – Smt.Rakshita, has stated that being a Woman Police Constable, as per the instructions, she kept a watch on the body of the deceased in the hospital and collected articles at MO-1 to MO-8 and submitted it to her superiors.

35. PW-33 – Ashit Kiran, a Police Constable, has stated about he carrying the first information report from the respondent-police station and submitting it to the jurisdictional Magistrate.

36. PW-34 – Sukesh Poojary, has stated that being a Police Constable, at the instructions of his superior, he has carried twentytwo articles seized in this case and submitted it to the Regional Forensic Science Laboratory at Mangaluru for its chemical examination.

37. PW-35 – Vasu, another Police Constable, has stated that at the instructions of his superior, though he attempted to serve a request letter addressed to the Tahsildar & Taluka Executive Magistrate, requesting for conducting inquest panchanama, however, due to non-availability of the said Officer, the same could not be served upon him. He also stated that on 25.6.2012, at the request of the Investigating Officer, he secured two panchas when the accused had given his voluntary statement.

38. PW-36 – Ramesh Kumar, then Police-Inspector of the respondent-Police Station has stated that on 20.6.2012, at about 11.00 p.m., he received a telephone call from Dr.Rashmi, Medical Officer of Community Health Centre, Moodabidri, who informed over the phone that a patient-Jayanthi was murdered by her husband. Immediately, he after passing over the information to his superior i.e., CW-45, rushed to the hospital accompanied by his staff. He saw the dead body of the deceased in a Ward of the hospital and the injured child under treatment. He made arrangements for shifting the injured child to the hospital in an ambulance. By enquiry, he came to know that the accused had fled the scene along with sickle used in the commission of the crime. Though he attempted to search for him, but, he could not.

The witness has further stated that on 23.6.2012, based on an information, he went to a village called Yedapadavu and noticed the fallen accused in a semi-conscious stage in a land there. He got the accused identified through one Madhava Devadiga, who was present and shifted the accused in an ambulance to the hospital. He came to know that accused by consuming break fluid oil had attempted to commit suicide and in that connection, the jurisdictional police have registered a case. He also stated that the accused was arrested after his discharge from the hospital on 25.6.2012 and produced him before the Investigating Officer.

39. PW-37 – Arun Kumar, a Head Constable, has stated about he accompanying PW-36 while apprehending the accused in a land at Yedapadavu village.

40. PW-38 – Dr. (Smt.) Geethalakshmi P., a Scientific Officer at Regional Forensic Science Laboratory, Mangaluru, has stated about she subjecting the articles submitted to their laboratory by the Investigating Officer in this case for its scientific examination. After giving the descriptions of the articles examined by her, which also included the cloth materials and ornaments said to have been worn by the deceased at the time of the incident, the witness has stated that she noticed blood stains on all those articles. After its Serology test, she observed that the blood stains belong to human blood `B’ group. She had identified the medical report issued by her in that regard at Ex.P-46. She has identified those articles in the Court from MO-1 to MO-12. She has also stated that the articles examined by her also included a shirt and a jeans pant with blood stains, which blood stain was of human blood belonging to `B’ group.

41. PW-39 – A.K.Thimmaiah, then Police Inspector of respondent-police station has stated that on 20.6.2012 in the night, at about 11.30 p.m., he had received a telephone call from PW-36, informing him about a murder said to have taken place just before that in the Government Hospital at Moodabidri. Immediately, he rushed to the hospital and saw the dead body of deceased Jayanthi. He also requested the dog squad and finger print experts to visit the place. From there, he took the complainant to the police station, who gave her complaint as per Ex.P-1. In the police station, he registered the same and prepared first information report as per Ex.P-48 and sent it to the jurisdictional Magistrate. Since Tahsildar was not available on that day and based on the instructions of his superior, himself conducted the inquest panchanama on the dead body of the deceased as per Ex.P-13. He also seized from the spot the material articles from MO-

1 to MO-8. During the investigation, he also seized articles at MO-12, 14 to 17. The witness has stated that he got the photographs taken at the spot which he has identified from Exs.P-4 to P-12.

The witness has also stated that during the course of investigation, he has recorded the statements of several witnesses and further statement of the complainant. On 23.6.2012, his staff apprehended the accused who had attempted for suicide and was admitted him to Wenlock Hospital at Mangaluru, for treatment. After the discharge of the said accused from the hospital, on 25.6.2012, he arrested him and he recorded the voluntary statement as per Ex.P-50 given by the accused. Based on the voluntary statement and as led by the accused along with panchas, he proceeded to the place shown by the accused which was a place called Mastikatte, from there, out of a bush, the accused took out a sickle and produced before them, which he seized by drawing a panchanama as per Ex.P-14. The witness has identified the sickle at MO-9.

The witness has also stated that the accused also took them to his house at Yedapadavu village and from inside his house, he brought out a blood stained shirt and jeans pant stating that the same were worn by him at the time of commission of crime. He seized the motorcycle also. The witness has identified the sickle and the clothes in the Court which were marked as material objects. The witness further stated that he continuing the investigation in the matter, collected the details of the vehicle seized from the Regional Transport Officer as per Ex.P-55. He collected the revenue records with respect to the hospital wherein the incident has happened from the local Municipality as per Ex.P-37. He also collected the case sheet of the deceased in the hospital as per Ex.P-48. He sent the seized articles for its scientific examination to the Regional Forensic Science Laboratory, Mangaluru, through his staff. The report he received subsequently were marked at Exs.P-45, P-46 and P-47.

The witness also stated that after coming to know that the accused had made a call to a person about the incident, he collected call details through the office of the Commissioner of Police. He got the sketch of the scene of occurrence of the offence drawn by the Public Works Department authorities as per Ex.P-41. He also collected the medical records pertaining to the accused as per Ex.58. After completing the investigation, he filed the charge sheet against the accused.

42. Apart from the witnesses from the prosecution side, there are two more witnesses from the accused side.

DW-1 – Dr.John Mathai, a Psychiatric at Father Muller Medical College Hospital, Mangaluru, has stated that accused was admitted in their hospital on 18.4.2010, with the complaint of his addiction to consumption of liquor and aggressive mentality. By examination, he noticed that the patient was addicted to liquor, for which, suitable treatment was given. Due to the suitable medical treatment, accused was recovered and his alcoholic symptoms were also minimised.

The accused did not exhibit any aggressive attitude or behaviour or acts during his stay in the hospital. As such, the accused was discharged from the hospital, in which regard, the case sheet was marked by this witness as Ex.D-1.

43. DW-2 – Sridhar Devadiga, has stated that accused was known to him since twenty years. The accused was addicted to liquor and under the influence of liquor, he was acting as a mad person. In that regard, in the year 2010, the accused was also admitted to a hospital. The witness has stated that accused who had no parents, was working in a garage and was consuming liquor and also was irregular to his work.

44. From the evidence of the prosecution witnesses, it is clear that all the materials witnesses, including the complainant, have stated that the death of the deceased Jayanthi had taken place on the night of 20.6.2012 in the hospital ward of Community Health Centre at Moodabidri. The said death was a murder since the deceased was inflicted with several injuries with a weapon i.e., sickle. As already observed above, in none of the evidence of these witnesses, more importantly, in any of the evidence of alleged eye witnesses, no suggestion was made from the accused side denying the occurrence of the incident of inflicting injuries upon the deceased in the hospital Ward which has led to her death instantaneously. Even though in the cross-examination of all the material witnesses and more particularly, PWs.1, 2, 4 to 8, it was suggested that the accused has not committed the same, but, the incident of the alleged butchering of the deceased in the hospital in the presence of other inmates and staff in the hospital has not been denied. Thus, the evidence of PWs.1, 2, 4 to 8, go to show that all those witnesses who claims to have seen the incident have called the act of the death of the deceased Jayanthi not just a homicidal, but, it is a murder.

45. The inquest panchanama at Ex.P-13, which is supported by the evidence of PWs.9 and 10 and the Investigating Officer i.e., PW-39, also shows that the panchas have opined that the death of Jayanthi on the date, time and place shown in the panchanama was a murder.

46. The important witness who can speak about the nature of death is PW-29, the doctor, who not only has treated the injured during her stay in the hospital as an inpatient, but, also has conducted the autopsy. The said witness in her evidence has given a detailed account of the injuries noticed by her on the person of the deceased when she conducted the autopsy.

According to the said witness, the following injuries were found on the person :

1. Laceration 11x3 cms, right side of neck 1 cm away from midline 2 cm below symphysis menti carotid artery, external jugular vein cut, complete circumference over line muscles cut.

2. Laceration on right side of mandible 1 cm away from symphysis menti.

3. Incised wound 15x2 cms on right angel of mandible.

4. Incised wound 5x0.5 cms below lower limb on right side.

5. Laceration 5x2 cms on scakp over left parietal bone.

6. Incised wound on scalp 2 x 0.5 cms over the left parietal bone, 1 cms away from sagital suture.

7. Incised wound 2x1 cms over posterior aspect of left arm 5 cms on the olecranon process.

8. Laceration 8x5 cms on anterior aspect of left fore arm, 4 cms away from radial styloid process.

9. Incised wound 4x0.5 cms over limb.

10. Incised wound 8x2 cms over medial 3 digits at M.C.P. joint.

11. Incised 8x1 cms over the medial 3 digits at left MCP joint.

12. Laceration 9x3 cms over the posterior aspect of the fore arm 5 cms away from radial styloid process.

13. Incised wound 2 x 1 cms over right shoulder.

14. Laceration 4 x 2 cms over the back, 15 cms away from occiputy.

The Doctor has opined that the cause of death according to her is due to hypo-volemic shock due to severe blood loss as a result of damage to great vessels resulting from assault. After examining the weapon shown to her by the Investigating Officer which was at MO-9, the Doctor has however opined as per Ex.P39 that the said weapon at MO-9 which was examined by her can cause the injuries found on the deceased. Thus, the evidence of PW-1, PW-2 and PWs. 4 to 8 and the evidence of panchas of the inquest panchanama i.e. PW-9 and PW-10 and also the evidence of the Doctor as per Ex.P39 make it very clear that the death of the deceased was homicidal.

47. The next question to be considered is, whether the said homicidal death was a murder and was committed by none lese than the accused?

In that regard, as already observed, it is once again the evidence of PW-1, PW-2 and PWs. 4 to 8 who claim to be the eye witnesses to the alleged incident is very important and material. Admittedly, PW-1 and PW-2 being the family members of the deceased were attending the deceased in the Hospital where the deceased was in the post delivery Ward with her child of two days old. Both PW-1 and PW-2 have categorically stated that the accused who is none else than the husband of the deceased entered the Ward on that night and on the pretext of talking to his wife, i.e. the deceased, took out a sickle from the bag which he was carrying with him and inflicted injuries on the deceased. They have also given a detailed account as to how the first injury was inflicted upon the deceased which made her to run away to the neighboring Ward being scared and yelling. Both these witnesses have also stated that the accused chased his wife who had already been injured by his act to the neighboring Ward and inflicted many more injuries on different parts of her body and by killing her incidentally and on the spot.

In the cross-examination of both PW-1 and PW-2, nothing material was brought from the accused’ side which was favourable to him. On the other hand, both the witnesses adhered to their original versions and have given few more details about the incident which makes the picture more clear as to how the alleged incident has occurred.

The evidence of PW-1 and PW-2 apart from giving a detailed account as to how the accused inflicted several injuries upon the deceased with the sickle he was possessing, have also given a detailed account as to the behaviour of the accused against his own child of two days old. They have also shown it through their evidence that the accused with the same sickle lifted the newly born baby of two days old and threw the child on the ground, resulting in the child sustaining multiple injuries and more particularly on its arm and face.

The evidence of PW-1 and PW-2 is further corroborated by the evidence of other alleged eye witnesses to the incident who are PW-3, PW-4, PW-5, PW-6, PW-7 and PW-8. As already observed, PW-3, PW-5 and PW-6 being the in-patients taking treatment at that particular point of time in the same Hospital, their presence at the place of the incident and at the time of the incident cannot be doubted.

48. On the other hand, as observed above, by making a suggestion in the cross-examination of PW-5 and PW-6 that, they were sleeping in their bed in the Hospital at the time of incident, the accused has admitted the presence of those witnesses in the Hospital in the same Ward where the incident has taken place. But, PW-5 and PW-6 in a uniform manner joined by PW- 4, an attendant to PW-3 have in their unequivocal voice clearly and specifically stated that they have seen the occurrence of the incident starting from the time the accused entered the Ward and started to talk to his wife and till he left the place. They, in a uniform manner have stated that it was the accused and accused alone who took out a sickle from his possession and lodged blows on different parts of the body of the deceased inflicting multiple severe bleeding injuries upon her. It is due to those multiple injuries inflicted upon her that the deceased succumbed to it on the spot. These witnesses have also stated that though they were witnessing the incident, they were helpless and could not rescue the injured since the accused had threatened them of dire consequences in case they approached him. Having seen a sickle in the hand of the accused, which was flashed to them also, these witnesses have stated that they could not do anything.

49. The evidence of PW-4, PW-5 and PW-6 about they witnessing the alleged incident, is further corroborated by the evidence of PW-7 and PW-8 who were the Nurses on duty at the time of the incident. The same has been further vouched by PW-29 - Doctor.

According to PW-7 and PW-8 - the Nurses, it was they who permitted the accused to enter the Ward in the odd hours only upon his request that he was the husband of the deceased and wanted to meet his wife and child for few minutes. The said conduct of PW-7 and PW-8 who as Nurses have responded on humanitarian request of none less than the husband of the patient, cannot be considered as an unnatural act. On the other hand, they have shown that they were very responsible in their duty since they warned the accused before permitting him to enter into the Ward that he should not be there in the Ward for a long time and should leave within few minutes. As Duty Nurses and there being no reasons, they did not suspect the accused nor anticipated the unexpected incident that followed thereafter. Thus, the accused after getting a successful entry into the Ward, while PW-1, PW-2, PW-4, PW-5 and PW-6 were seeing has committed the alleged offence.

The evidence of PW-7 and PW-8 - the Staff Nurses on duty further go to show that till they heard the yelling noise from the Ward where Jayanthi was lodged, they did not know about the incident as they were in the staff room. However, the moment they heard the yelling noise of Jayanthi, they rushed to the Ward where they saw the accused holding a sickle in his hand and chasing the injured to the neighbouring Ward. According to these two witnesses, it is in their presence the accused inflicted few more injuries with the same sickle on the body of his wife, who had already been inflicted with one such blow by her husband, i.e. accused. Even these two witnesses have also stated that they could not do anything because showing the sickle he was having, the accused threatened them of taking their life and with dire consequences. Admittedly, the Ward was a Ladies Ward, a Labour Ward and post delivery treatment Section and all the in-patients were ladies and so also the attendants. The Nurses on duty were also ladies. Thus in the absence of any other person except the five in-patients and some of the attendants to them, there was no other help from any one from outside either to stop the act of the accused or to apprehend the accused.

Thus the evidence of PW-1, PW-2, PW-4, PW-5, PW-6, PW-7 and PW-8 gives a complete, clear and uniform picture of the incident that has taken place which clearly go to show only one point that, it was the accused and accused alone who inflicted several injuries upon the deceased, making use of the sickle which was in his possession at that time, which have been noticed by the Doctor during autopsy. All these witnesses have also identified the said sickle in the Court at MO-9. The said identification of the sickle by these witnesses is not disputed from the side of the accused. The said sickle was shown to be blood stained even at its recovery stage and the Forensic Science Laboratory report also shows that the blood found on the dress worn by the deceased at the time of incident and other articles, the blood stains found on the dress material worn by the accused and the blood stains on the sickle at MO-9 were all human blood belonging to the same blood Group B+. Therefore, it is not just the eye witnesses, even the scientific examination of the alleged weapon in the incident also shows that it was the weapon at MO-9 which was used by the accused in the commission of the crime against his wife.

50. The evidence of PW-4, PW-5, PW-6, PW-7 and PW-8 further shows that, after inflicting injuries on his wife, the accused ran away from the place holding the sickle in his hand, which clearly goes to show that the accused had taken the sickle along with him when he left the Ward. The said sickle is shown to have been recovered at the instance of the accused in the presence of panchas as narrated by the Investigating Officer, i.e. PW-39 and the panchas - PW-13 and PW-14.

51. The accused who was arrested after his discharge from the Wenlock Hospital, Mangalore, on 25- 06-2012, is shown to have given his voluntary statement before the Investigating Officer as per Ex.P50 wherein he is shown to have stated that he would show the place of hiding the sickle used in the commission of the crime. It is based upon his voluntary statement, the Investigating Officer is said to have recovered the said weapon in the presence of panchas.

52. As observed above, PW-35 - the Police Constable has stated about he securing two panchas on the request of his superior to be present while the recovery would be made at the instance of the accused. Those two panchas who are PW-13 and PW-14, as observed above, also fully supported the case of the prosecution. They have clearly stated that it was the accused who led them along with the Police near Mastikatte and from beneath a heap of stones, he took out a blood stained sickle and produced it before them, which was seized by the Police by drawing a seizure panchanama as per Ex.P14.

The witnesses have also identified the said sickle at MO-9 and their evidence could not be shaken in their cross-examination from the side of the accused. Thus the evidence of PW-13 and PW-14 corroborates the evidence of PW-3, PW-9 and PW-10 that the Investigating Officer recovered the weapon used in the commission of the crime at the instance of the accused and based on his voluntary statement.

Same is the flow of the event with respect to recovery of the cloth said to have been worn by accused at the time of the commission of the crime also. According to PW-15 and PW-23, they were the panchas to the alleged seizure panchanama at Ex.P27 drawn by the Investigating Officer while the accused produced a blood stained shirt and a jeans pant, the dress worn by him at the time of commission of the crime.

53. As already observed above, both these witnesses have uniformly stated that the accused took them to his house at Yedapadavu village and from inside the house, he produced those two cloths which these witnesses observed and on the spot and noticed the presence of the blood stains on the shirt. Those cloths the witnesses have identified in the Court at MO-10 and MO-11 respectively. Along with other articles even these two cloths were also sent to Forensic Science Laboratory by the Investigating Officer for their examination. As stated by the Scientific Officer - PW- 38, on all the articles examined by her at MO-1 to MO- 12, she noticed the presence of blood which after serological report, revealed to be that of the human blood belonging to B Group and reports to that effect issued by her can be seen at Exs.P45 and P46. Therefore, the cogent, clear and uniform evidence of PW-13, PW-14, PW-15 and PW-23 corroborates the evidence of PW-39 – Investigating Officer that the weapon used in the commission of the crime by the accused as well the dress material worn by the accused at the time of commission of the crime were recovered at the instance of the accused himself and the same stands proved.

54. The evidence of Dr. Rashmi M.N. who was examined as PW-29 also clearly establishes that she has examined the weapon shown to her at MO-9 and opined that the injuries found on the deceased can be caused by using the said weapon at MO-9. The said opinion could not be shaken in her cross-examination. Except making few general denial suggestions in her cross- examination, nothing material could be elicited in favour of the accused.

Thus, the recovery of the weapon, the blood stained cloths of the accused which corresponds with the blood found on the dress material of the deceased and other articles belonging to the deceased and the medical opinion showing the relationship of the weapon to the injuries clearly go to prove beyond all reasonable doubts that it is the said weapon at MO-9 that was used by the accused in the commission of the crime, i.e. the murder of his wife - Jayanthi.

55. Thus, the ocular evidence supported by the scientific evidence in the form of medical evidence and Forensic Science Laboratory report corroborates the evidence of PW-39 - Investigating Officer that it was the accused and accused alone who has caused the murder of his wife - Jayanthi.

56. The motive behind the alleged commission of the crime as stated by PW-1, PW-2, PW-11, PW-12 is that, the deceased and the accused were in love prior to their marriage. Their activity of love resulted in the deceased conceiving and becoming pregnant in her pre- marital stage. When she was four months’ pregnant, the accused refused to marry her despite her request to marry her. At that time, the family members of the deceased and other elders made the accused to marry her by warning him of they approaching the Police and lodging the complaint in case the accused refused to marry her. This made the accused to marry the deceased. Thus, it was an un-willing marriage to him. After marriage, he stayed with his wife only for few days and without any notice, he left her in his in-law’s place only to return on the date of the alleged incident with his criminal intention of taking away the life of his wife. The evidence of these people about the performance of marriage of the deceased with un-willing accused and the accused being not happy with the said marriage is further corroborated by the evidence of PW-27 - Sakku @ Shakuntala, who undisputedly is a common friend of both the accused and the deceased. It is the said witness who introduced the deceased to the accused and before whom the accused was said to have been revealing all his happiness and sorrows in life. The said witness has categorically stated that the accused was not happy with his marriage with the deceased and in that regard, he had expressed his dissatisfaction and displeasure before her.

The witness has gone to the extent of stating that on the day after the incident of murder of Jayanthi - the wife of the accused, the accused telephoned her from a Coin Booth informing her that he had killed his wife.

Though it is an extra-judicial confession, the undisputed evidence of this witness that she was a common friend to both the deceased and accused and that the accused was sharing his good and bad, pleasure and un- happiness with her, does not prevent one to believe all the possibilities of the accused telephoning her about the incident and informing her about his role in the incident.

The said aspect of the accused calling her from a Coin Booth is further corroborated by the evidence of PW-19 - Coin Booth owner, who also has stated that on 22-06-2012, the very date on which PW-27 is said to have received the call from the accused, the same accused had made a call from the Coin Booth. The Call Details Register record collected by the Investigating Officer in that regard further corroborates the evidence of PW-19 and PW-27.

Thus, even though the evidence of PW-1, PW-2, and PW-4 to 8 as ocular witnesses’ evidence clearly proves the guilt of the accused in murdering his wife, the evidence of PW-27 is an added advantage to the prosecution in fine-tuning its case against the accused.

57. Therefore, it is proved beyond all reasonable doubts that it is the accused and accused alone who has committed the murder of deceased Jayanthi on the night of 20-06-2012 at about 11:00 p.m. in a post-Labour Ward at Community Health Centre at Moodabidre.

The evidence of PW-1, PW-2 and PWs.4 to 8 apart from stating that the act of the accused did not confine in causing the death of his wife but also extended in inflicting injuries upon his infant of only 2 days’ old, is supported and corroborated by the evidence of Doctor who medically examined and treated the child.

PW-1 PW-2, PW-4, PW-5 and PW-6 have clearly stated that the accused apart from assaulting his wife and inflicting injuries upon her had also thrown his child of two days’ old which was wrapped in a cloth, by lifting it with the help of a sickle and dropping the baby on the floor.

The evidence of Staff Nurses, i.e. PW-7 and PW-8 further corroborates that when they returned to the Ward, they saw the child fallen on the ground sustaining injuries.

PW-5 - Smt. Rehamath and PW-6 -Smt. Surekha, being the in-patients in the same Ward at the cot next to that of the deceased have in unequivocal terms stated that it was the accused himself who threw the child of two days old by making use of a sickle.

The evidence of PW-20 - Dr. Balakrishna Rao N.S. clearly shows that in his examination, he apart from noticing three simple injuries on the person of the infant has also noticed two fractured injuries, one on the left humerus and second on the right parietal region. The Doctor has opined that both the injuries are grievous in nature. Nothing was suggested to the witness or nothing was brought in the cross-examination of this witness to disbelieve his evidence.

Thus, the evidence of the eye witnesses corroborated by the medical evidence of PW-20 clearly establishes and proves beyond all reasonable doubts that the accused has voluntarily caused grievous injuries upon his child by means of a weapon (sickle) which he was holding.

58. It is the case of the prosecution that the accused has attempted to commit the murder of the infant of two days old. No doubt a primary depiction of the incident by PW-1, PW-2 and PWs.4 to 8 though gives an impression that the act of the accused might be an act of taking away the life of the child also since he threw the child on the ground, but an in-depth study of the evidence of these ocular witnesses nowhere goes to show that the accused had any such intention of causing the death of his child. The act of the accused in throwing his child on the ground also cannot be inferred as an act which could have been resulted in the death of the child or to the knowledge of the accused that the child would die by such an act. Had really the accused intended to cause the death of his child, nothing had prevented him from achieving it, since he was commanding the circumstance and seen armed with a deadly weapon like the sickle. When amidst the other inmates of the Hospital and staff members he could able to chase and kill his wife inflicting several serious injuries upon her, what made the accused not to achieve his purpose, if any, against the child would by itself, go to show that it was not his intention to take away the life of the child. However, the ocular evidence clearly goes to show that he has voluntarily caused grievous hurt to the child by means of a sickle which he was possessing.

59. Therefore, the argument of the learned counsel for the appellant that the prosecution has failed to prove beyond all reasonable doubts that the accused attempted to cause the death of the child, however the Trial Court has erroneously and by not appreciating the evidence on that point in its proper perspective wrongly held the accused even guilty for the offence punishable under Section 307 of IPC, requires to be entertained.

60. The defence of the accused is that the accused was suffering from depression. Suggestion in this regard was made in the cross-examination of PW-11 – Krishna. However, this witness has categorically denied the said suggestion. The accused got examined two witnesses on his behalf as DW-1 and DW-2. DW-1 – Dr. Jhon Mathai is a psychiatrist who had earlier treated the accused in April 2010 and the other witness is a person known to the accused since a very long time. DW-1, no doubt has stated that the accused was admitted in the Hospital and was treated by him in the year 2010 for the alleged complaint of addiction to liquor and the attitude of aggressiveness, but the said Doctor has clearly stated that by proper medication, the addiction to liquor was reduced and all other complaints were also brought to normalcy. He has further made it clear that during his stay in the Hospital, the witness has not exhibited the act of aggression or shown any aggressive behavior. On the other hand, the same Doctor in the cross- examination has also stated that even a person addicted to liquor can also lead a happy and good marital life. Person who has accustomed to liquor would maintain his control and balance when he consumes liquor within his limits. Thus the evidence of DW-1 is in no way helpful to the accused.

Thus, by no stretch of imagination, it goes to show that, as at the time of the incident which was in June 2012, the accused was suffering with any mental disorder.

The evidence of DW-2 though would go to show that this witness was acquainted with the accused for about 20 years, but his evidence except stating that the accused was with some frustration, would not say anything about his mental status. His evidence does not show that the accused was suffering with any mental ill- health.

Thus, the defence taken by the accused could not be established and also could not, in any way, result in weakening the case of the prosecution.

61. Consequently, since the above analysis would clearly go to show that it was the accused and accused alone who has caused the murder of his wife and also inflicted grievous hurt to his child and also put the life threat to the other in-patients of the Hospital at the time of the commission of the crime, has committed the offences punishable under Sections 302, 326 and 506 of IPC.

However, the prosecution could not able to prove the guilt of the accused for the offence punishable under Section 307 of IPC. Thus, we are of the clear opinion that the accused appellant deserves to be acquitted for the offence punishable under Section 307 of IPC.

However, no interference is warranted on his conviction for the remaining offences punishable under Sections 302, 326 and 506 of IPC.

62. The sentence ordered by the Trial Court for the offence punishable under Section 302 of IPC being minimum sentence and the sentence ordered with respect to the remaining two other offences punishable under Sections 326 and 506 of IPC being proportionate to the criminality of the guilt proved against the accused, we do not want to interfere in the order of sentence also.

63. Accordingly, we proceed to pass the following:-

O R D E R [i] The appeal is allowed in part;

[ii] The judgment of conviction dated 09-02-2017 and order on sentence dated 17-02-2017, passed by the learned I Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, in Sessions Case No.152/2012, holding the accused appellant – Mr. Jayanth, S/o. Late Jarappa Devadiga guilty of the offence punishable under Section 307 of the Indian Penal Code is hereby set aside;

[iii] The accused appellant – Mr. Jayanth, S/o.

Late Jarappa Devadiga, Aged about 32 years, R/o. Mathrusri Nilaya, Kuvedapadi, Yedapadavu Post, thenka Yedapadavu village, Mangaluru Taluk, pin:574144, is hereby acquitted of the offence punishable under Section 307 of the Indian Penal Code;

[iv] The judgment of conviction and order on sentence under appeal in Sessions Case No.152/2012, holding the accused/appellant – Mr. Jayanth, S/o. Late Jarappa Devadiga guilty of the offences punishable under Sections 302, 326 and 506 of the Indian Penal Code and sentencing him for the proportionate guilt, is hereby confirmed;

The Registry to transmit a copy of this judgment along with Lower Court Records to the Trial Court without delay.

A copy of this judgment be also furnished to the accused, without delay.

Sd/- JUDGE Sd/- JUDGE Bk/BMV*