IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR. JUSTICE N. K. SUDHINDRARAO AND THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV CRIMINAL APPEAL No. 943/2014 BETWEEN:
Kullegowda @ Kulla S/o. Chikkabettegowda, Aged about 40 years, R/at Thenkalahundi Grama, Gundlupete Taluk 571 111.
(By Sri. D. Nagaraja Reddy, Adv.) AND State of Karnataka By Gundlupet Police 571 111.
(By Sri. Vijayakumar Majage, SPP) ... Appellant ... Respondent This criminal appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment and conviction, order and sentence passed by the learned Sessions Judge and Presiding Officer, Fast Track Court, Chamarajanagar, in S.C.No.84/2008 on 13.08.2009.
This Criminal Appeal coming on for hearing this day, N.K.SUDHINDRARAO J, delivered the following:
JUDGMENT This appeal is preferred by the accused against the judgment dated 13.08.2009 in S.C. No.84/2008 by the learned Sessions Judge and Presiding Officer, Fast Track Court, Chamarajanagar convicting the accused for the offence punishable under Section 364 of IPC and sentencing him to undergo life imprisonment for the offence punishable under Section 302 of IPC.
2. The proceedings against the accused came to be initiated because of the incident of kidnapping and murdering Basavanna – son of C.W.1 on 06.07.2008 at about 3.00 p.m. The accused kidnapped the son of C.W.1 by name Basavanna from Thenkanahundi Village, Gundlupet Taluk and took the said child to Nanjanagudu and pushed him to Kapila river and murdered him there. Thus the case came to be registered against him in Crime No.227/2008 for the offence punishable under Section 364 of IPC. On completion of investigation, final report came to be filed against the accused inducting him for having committed offences punishable under Sections 364 and 302 of IPC. The accused is the father of victim child – Basavanna.
3. After hearing both the sides, the learned trial Judge framed charges against accused, accused pleaded not guilty and came to be tried and found the accused guilty for having committed offence punishable under Sections 364 and 302 of IPC and convicted him for the said offences and sentenced him as stated above.
4. The offence charged against the accused involved the one punishable under Section 302 of IPC. It is incumbent on the part of the prosecution to establish the death of the child – Basavana as a homicidal and not natural one.
5. In Column No.17 of the charge sheet, it is clearly mentioned that the accused enticed the child and has murdered him by throwing him in Kapila river at Nanjanagud. The inquest mahazar – Ex.P.3 was conducted. The postmortem report - Ex.P.11, doctor’s opinion - Ex.P.12, Ex.P.13 - pathology report and Ex.P.14 – FSL report and the evidence of the doctor confirmed that the death of Basavanna who was aged 5 years between 06.07.2008 to 08.07.2008 was a homicide. Recovery of the dead body of the child from Kapila river established that the death was homicidal and not a natural. Having established the death of child as homicidal one, it was incumbent on the part of the prosecution to establish that the homicide of Basavanna was committed by his father - accused and at the place and period stated above. It is in this connection prosecution has examined the witnesses - P.Ws. 1 to 13 and has produced Exs. P1 to P.14 documentary evidence on its behalf. The defendant has produced Exs.D.1 to D.12.
6. Learned counsel - Sri. D. Nagaraj Reddy, appearing for accused – appellant would submit that the prosecution witnesses - P.Ws.1 to 13 are all biased and prejudicial against the accused due to marital dispute between the accused – Kullegowda and his wife P.W.2 – Parvathamma. The spouses are stated to be living separately due to differences for a period of 5 years prior to the incident.
7. Learned counsel would further submit that the accused was not a stranger nor a foreigner to the child and as a natural father, with love and affection had every right to meet, talk and spend time with the child despite the fact that there were differences between him and his wife. Learned counsel would further submit that there ware no eye witnesses to the incident of committing murder of Basavanna and there were no incriminating circumstances against the accused for having committed the offence punishable under Sections 364 and 302 of IPC. The assertions to the effect that the accused took the child by kidnapping him for the purpose of murdering is false and the relatives of P.W.2 hatched a conspiracy to cook up a story of imagination against the accused. It is further submitted that the accused being a natural father of the victim had abundant love and affection towards the child and in fact he was taking the child everyday and offering him biscuits to eat and this practice of the accused has been taken as a weapon by P.W.2 and her relatives to settle the score against the accused. In nutshell, the learned counsel submitted that from all angles, the prosecution has failed miserably to prove the commission of offence beyond reasonable doubt.
8. Sri. Vijayakumar Majage - learned Special Public Prosecutor submits that there is no doubt for the charge of offence punishable under Sections 364 and 302 of IPC against the accused. Learned SPP further submits that it was an admitted fact that P.W.2 – Parvathamma, wife of accused and the accused were living separately. The learned counsel would further submit that the child was in the custody of mother – Parvathamma who is examined as P.W.2 for the past 5 years and this fact antagonized the accused against his wife.
9. It was further submitted that the accused was waiting for an occasion to settle his score. Unfortunately, he made an abuse to the maximum extent to do away with the life of child and was not caring that it was his own child. His wife had abandoned the martial home and settled in the parental house along with the child. In these circumstances he committed the murder after kidnapping the child.
10. Among the witnesses who were examined on behalf of the prosecution, Rathnamma – P.W.1 who is the step mother of P.W.2 stated in her evidence about the marriage and begetting two children through the marriage between P.W.2 and the accused and the strained relationship of the accused and his wife Parvathamma. This witness stated about the accused taking the child Basavanna on 06.07.2008 from the front yard of the house at Thenkanahundi Village. According to her on the date of incident she was at Thenkanahundi Village, Gundlupet Taluk along with P.W.2 and P.W.2 had gone to coolie and another daughter of her by name Puttamma was in the house of this witness. Basavanna, son of accused and Parvathamma was playing in the front yard. Thereafter, her second daughter – Puttamma observed the accused taking the child and going away and she informed the matter to others. Later, this witness, her husband and Gowramma came out and saw the accused forcibly taking the child much against his wish and he proceeded towards Shettarahundi village. They thought that as a father the accused might have taken the child for offering him food. This witness also informed P.W.2 - Parvathamma when she arrived home at 6.00 p.m. that the child was taken away by the accused. Meanwhile, Shivegowda, Puttarajegowda and Jogegowda, having seen the accused along with child reported the same to her family members. Later, this witness came to know that the accused kidnapped the child and his dead body was recovered from Kapila river of Nanjanagud and the dead body was identified. She has been cross-examined at length and no significant contradictions or omissions are extracted from this witness.
11. P.W.2 - Parvathamma is the wife of the accused. In other words, the accused – Kullegowda and Parvathamma are spouses and the victim was born to them as a second child. The first one was already dead. The marital life of accused and this witness is disrupted. This witness in her evidence tells that the accused was threatening this witnesss on the earlier occasions that he would take away the child and kill it. She has stated that on the date of the incident she had gone to coolie work and her sister - Puttamma was looking after the child. On the arrival of this witness Puttamma told her that the accused took away the child – Basavanna and that he had proclaimed to take away the life of the child. She lodged a complaint as per Ex.P.1. On the strength of which a criminal case came to be registered against accused in Crime No.227/2008 for the offence punishable under Section 364 of IPC. On the next date of complaint, the police summoned her and showed the dead body that was floating in the river. The said child was wearing red knicker and blue shirt. The dead body was removed from the river and the police conducted mahazar. There was bleeding from ears and nose.
12. P.W.3 - Puttamma speaks about the circumstances and hostility between the accused and P.W.2 and the accused taking away the child on the date of incident without caring the refusal and on hearing the screaming she went to the place and saw the accused was taking away the child and was proclaiming of taking away the life of the victim and thereafter at 6 p.m., PW.2 – Parvathamma came and she informed the news of accused taking away the child and thereafter, she endorses the version stated by PW.2.
13. Shivanna is PW.4, an inquest witness.
Shivanna Gowda is the villager of Tenkala Hundi.
14. The evidence of Chenne Gowda – PW.5 recorded on 03.03.2009 is that, he is the natural father of PW.2. The substance of his evidence is that he tells about the attendant of circumstances prior to the incident wherein, the accused who was living away from his daughter used to come and threaten PW.2 who is the daughter of this witness to the effect that he would take away the child and kill him. According to this witness, on the date of the incident, he endorses the version of PW.3 – Puttamma. He states that PW.3 screamed and this witness saw the accused taking away the child and also proclaiming that he is going to kill him. Before the incident, according to this witness, accused was very often visiting the house. On the previous occasions, accused used to take the child and bring him back but on the particular day, he has not returned the child. After getting information from the police in response to the complaint, this witness and others went to the police station at Nanjungud and rest is as per the version of PWs.2 and 3 to the incident. Going to Kapila river at Nanjungud and identifying the dead body that was floating on the river and being recovered from there.
15. Shive Gowda is PW.7 who is stated to be one of the circumstantial witnesses and his evidence was recorded on 03.03.2009. He tells that, he saw the accused six months ago to 03.03.2009, carrying the child towards Shetara Hundi village and he had informed PW.2 - Parvathamma that the accused had taken the child Basavanna towards Shetara Hundi.
16. PW.8 – Mahesh is the witness to spot mahazaar Ex.P.2 and his evidence was recorded on 06.04.2009.
17. PW.9 – Bellegowda was examined on 06.04.2009, who is also a circumstantial witness but he turned hostile to the case of the prosecution.
18. PW.10 - Chikkanna was examined on 20.04.2009. He is the witness to the seizure mahazaar at Ex.P.5.
19. PW.11 - K.M.Vasanth is the Police Sub- Inspector who has deposed on 25.05.2009, that he is the person who received the complaint, registered the criminal case and completed the formalities. He identifies the complaint as Ex.P.1 and Ex.P.6.
20. PW.12 – Sri C.T.Jaya Kumar is the Inspector who has conducted the investigation and speaks about the formalities conducted through out the investigation including recording the statements, collecting necessary documents, sending the seizure articles to FSL for chemical examination and the other related aspects. He has conducted the part of investigation and filed the final report.
21. PW.13 is Dr. Gayathri who was examined on 03.06.2009. She has conducted the post mortem of the victim boy and her evidence is by answering that the death is in homicidal nature.
22. In the context and circumstances, the admitted relationship is that the accused and PW.2 are spouses. They begot two children through marriage. However, first child is reported dead and the victim in this case Basavanna is the second child. The spouses were living separately and their relationship was strained. In fact, the wife, PW.2 – Parvathamma had returned to the parental house and stayed along with the child. It is the case of the prosecution that the accused took the child at about 3.00 p.m. of 06.07.2008 and the same was seen by ample of persons and thereafter, it is reported that the accused took away the child and the dead body was recovered from the Kapila river and other aspects. PW.2 – mother of the deceased victim and others identified the dead body to be the child Basavanna, aged five years, the son of accused and PW.2 – Parvathamma. In this connection, two aspects are to be looked into.
23. Basically, the accused is not a strange person to Basavanna. Former is the father. He had the habit of speaking with Basavanna, his son. Because of the deception in the marital life, his wife – PW.2 was residing separately. In this connection, it is stated that against the cruelty, once there were talks between his father-in-law and also wife - PW.2. There are witnesses who have seen the accused at about 3.00 p.m. was taking the child along with him and going towards Shetara Hundi village. In this connection, it is also forthcoming that he was visiting the place to speak with his son, though there was hostility between the spouses. Namely these witnesses – PW.5 and PW.2. Thus, there is no doubt against the accused when either Puttamma – PW.3, on her intimation to the witnesses who came outside the house i.e., PW.5 - the father - Channe Gowda, his wife Rathnamma – PW.1. This evidence from all angles and probability appears to have all the legal efficacy. In this connection, it is necessary to note that the accused is the husband of PW.2 – Parvathamma and father of the victim. He had personal relationship with PW.2 and also blood relationship with the child. When it is established from the evidence of PW.1 – Rathnamma, Parvathamma – PW.2 and Puttamma – PW.3 that the accused took the child along with him on the said date i.e., on 06.07.2008, accused bears the personal knowledge of happening of things and he is bound to explain. More particularly, as per the mandate of Section 106 of Indian Evidence Act, which reads thus:
“Section 106: Burden of proving fact especially within knowledge: - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
As a person who is the father of the child and husband of PW.2 besides having taken the child at 3.00 p.m., to Tenkala Hundi village on 06.07.2008, which was directly seen by PW.2 and other witnesses PW.3 and PW.1. Either false explanation or not giving explanation both stand at the same platform and invariably, it was the duty of the person who knows the information to tell the same.
24. Another aspect would also come into consideration that Basavanna was reported murdered sometime between 06.07.2008 after 3.00 p.m. and 08.07.2008. Thus, during the life time of Master Basavanna, this accused was seen with him. In this connection, evidence of PW.2 – Parvathamma, PW.1 Rathnamma and PW.5 Channa Gowda abundantly inspires confidence of the Court.
25. The witnesses have no personal enemity against the accused. On the other hand, they stand neither to lose nor to gain anything if the accused is punished, as an innocent boy aged five years is dead as a result of the incident. The accused being the father and as it is established that on the particular day, he took away the child under hostile circumstances. Regard being it to the fact that he profess that he never wanted the child to stay in the custody of PW.2 – Parvathamma, who was residing in her parental house.
The custody of the child under the accused in hostile circumstances could not have been natural but it is hostile and also stood for committing wrong. The witnesses in their evidence have not projected either in artificial platform or narrated in an exaggerated manner.
26. Under the circumstances, insofar as the offence punishable under Section 364 of IPC is concerned, it provides for kidnapping for committing murder of the person enticed. Though existence of hostile relationship is established between the accused and PW.2 - the mother of the victim, it cannot be branded as he separated the child from lawful guardianship. Regard being had to the fact that he is the father of the child. In this connection, the word ‘kidnapping’ is defined under Section 364 of IPC:
“Section 364 Kidnapping or abducting in order to murder - Kidnapping or abducting in order to murder.--Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”
27. Thus, the offence in the circumstances does not form separate and distinguished for both Sections 364 and 302 of IPC. However, it is not necessary that when a person takes away a person for murder it accounts to kidnapping as well. More particularly, in the facts and circumstances of the case, no doubt that the prosecution has beyond reasonable doubt established the offence of murder by the accused after taking away the child. In the circumstances, taking away the child as being the first step towards the major offence of murder. Thus, the accused waited for an opportunity and took the child from Tenkala Hundi village at about 3.00 p.m. on 06.07.2008. As per the prosecution case, the accused has pushed or dropped the victim child in the Kapila River between 6.00 p.m. of 06.07.2008 and commencement of 08.07.2008. However, the prosecution has failed to prove beyond reasonable doubt regarding kidnapping of the child. Thus, the learned trial Judge though was right in coming to the conclusion that the accused committed the offence punishable under Section 302 of IPC in murdering his own child, but erred seriously in convicting accused for the offence punishable under Section 364 of IPC. Thus, conviction against this offence is liable to be set aside. However, conviction for the offence under Section 302 of IPC deserves to be confirmed.
28. Accordingly, we proceed to pass the following:
ORDER a. Appeal filed by the accused is partly allowed.
b. The judgment of conviction and order of sentence passed by the learned trial Judge in S.C.No.84/2008 dated 13.08.2009, for the offence punishable under Section 364 is hereby set aside.
However, the Judgment convicting the accused for having committed the offence of murder and sentencing him to undergo life imprisonment is confirmed. The appeal by the appellant - accused in this connection is dismissed.
sd/- Judge sd/- Judge VP/NVJ