IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF FEBRUARY 2019 PRESENT THE HON’BLE Mr. JUSTICE B.A.PATIL AND THE HON'BLE Dr.JUSTICE H B PRABHAKARA SASTRY CRIMINAL APPEAL No.1182/2015 BETWEEN:
Kumaraiah @ Komari, S/o.late Sri.Boraiah, Aged about 39 years, R/o.Arebuvalli village, Veerupakshipura Hobli, Channapatna Taluk, Mandya Dist.-571 116.
(By Sri.Vinayaka V.S., Advocate) AND:
State, By Halaguru Rural Police Station, Malavalli Taluk, Mandya District-571 116.
(By Sri.Vijay Kumar Majage, Addl. SPP) …APPELLANT …RESPONDENT This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to set aside the conviction and sentence dt.25.7.2014 passed by the I Addl. District and Sessions Judge, Mandya in S.C.No.62/2013 – convicting the appellant- accused for the offence p/u/s.302 of IPC.
This Criminal Appeal coming on for hearing, this day, B.A.PATIL, J, delivered the following:-
JUDGMENT The present appeal has been preferred by the appellant-accused assailing the Judgment of conviction and order of sentence passed by I Addl. District and Sessions Judge, Mandya in S.C.No.62/2013 dated 25.07.2014 wherein the appellant-accused was found guilty of the offence punishable under Section 302 of IPC and was sentenced to undergo S.I for life and to pay a fine of Rs.10,000/- and also default sentence of S.I for six months.
2. We have heard the learned counsel Sri.Vinayaka.V.S for the appellant-accused and the learned Addl. SPP Sri.Vijay Kumar Majage for the respondent-State.
3. It is the submission of the learned counsel for the accused that the learned Trial Judge, without considering the material placed on record, erroneously passed the impugned order. The same is not sustainable in law. He further submitted that nearly 1½ hours delay is there in lodging the complaint by P.W.4 and even there is no explanation for the said delay. Though P.W.4 was living in the opposite house where the deadbody was found, he has not acted reasonably and probably. He further submitted that the evidence of P.W.4 is not consistent so as to prove the guilt of the accused beyond all reasonable doubt. He further submitted that there are no eye-witnesses to the alleged incident. The entire case rests on the circumstantial evidence. He further submitted that immediately after seeing the body, there was no impediment for P.W.4 to inform the same to P.W.8-the mother of the deceased who was present at the place of the alleged incident to file the complaint. He further submitted that there is difference in the colour of the towel which has been seized as per Ex.P.5 and as per the opinion expressed by the doctor as per Ex.P.12. He further submitted that when there is a discrepancy in the colour of the towel, benefit of doubt ought to have been given to the accused. He further submitted that if the conduct of P.W.8-mother of the deceased is looked into, it is not natural and probable. Under such circumstances, benefit of doubt ought to have been given to the accused. Prosecution has not established the case beyond all reasonable doubt. He further submitted by drawing the attention of this Court to the evidence of P.W.1 that when he was called for the inquest, he found burn injuries over the dead body. The same has not been cross-examined and elicited so as to disbelieve his evidence. He further submitted that there is no strong motive to connect the appellant-accused to the alleged crime. He further submitted that even the last seen circumstance is also not applicable to the facts of the case on hand because of the reason that P.W.8 was also there in the same house on the alleged date of the incident. Under such circumstances, last seen theory ought not to have been believed by the Trial Court. Even the presence of the accused is disbelieved. He further submitted that P.W.8 was having old-age problems and she was having both eye-sight and hearing problem. Under such circumstances, her evidence ought not to have been believed. Under such circumstances, he prays to allow the appeal and acquit the accused.
4. Per contra, learned Addl. SPP vehemently argued that the evidence of P.W.8 clearly goes to show that the accused was present at the house on the said night and he has not come up with any explanation when he left the company of the deceased. He further submitted that there is a motive with regard to illicit relation and the money transaction. Even P.W.8 has also deposed that he had come to the house of deceased to ask for money. He further submitted that the death of the deceased is a homicidal death. Under what circumstances the alleged incident has taken place has not been explained by the accused. The Trial Court, after considering the said facts and circumstances, has rightly come to the conclusion and there are no grounds made out by the accused so as to allow the appeal and acquit the accused. On these grounds, he prayed to dismiss the appeal.
5. We have carefully and cautiously gone through the submissions made by the learned counsel for the accused and the learned Addl. SPP.
6. Before going to consider the submissions made by the learned counsels for the parties, we felt it just and appropriate to put forth the facts of the case of the prosecution in brief as under:
7. It is the case of the prosecution that accused was having illicit relationship with deceased Shivamma who is the wife of P.W.4-Biligiri and he has borrowed Rs.20,000/- from the deceased and in spite of holding the panchayath, he continued the said illicit relationship with the deceased and he used to come to the house of the mother of the deceased and there, they used to meet. In that light, on 20.12.2012 at about 11.30 p.m., accused came to the house of P.W.8-Subbamma, the mother of the deceased and on the said night, he also asked her to bring food and thereafter, they were together and quarreled with deceased with respect to the relationship and return of the money which has been borrowed from her and at that time, he assaulted her with a towel, smothered her and as a result of the same, she died. Next day morning, at about 5.30 a.m., husband of the deceased went to the house of mother of the deceased and found the dead body of the deceased and lodged a complaint as per Ex.P.3. On the basis of the complaint, a case was registered in Crime No.258/2012 for the offence punishable under Section 302 of IPC and after investigation, charge-sheet was laid against the accused. The learned Magistrate took cognizance and as the said case is triable by the Court of Sessions, he committed the case to the Sessions Court. The Sessions Court took cognizance of the said case and after securing presence of the accused, after hearing the learned Public Prosecutor and learned counsel for the accused regarding the charge, charge was prepared and read over and explained to the accused. Accused pleaded not guilty and as he claims to be tried, trial was fixed. In order to prove the case of the prosecution, prosecution got examined 21 witnesses and got marked 19 documents and also got marked M.Os.1 to 6 and thereafter, statement of the accused under Section 313 Cr.P.C., was recorded by putting the incriminating material as against him. He denied the said incriminating material, but he did not choose to lead any evidence on his behalf and no documents were got marked on behalf of him. After hearing the learned Public Prosecutor and learned counsel for the accused, the impugned Judgment of conviction and order of sentence came to be passed, challenging the legality and correctness of the said Judgment. The present accused is before this Court.
8. Before going to consider the submissions made by the learned counsels for the parties, we place on record in brief the evidence led by the prosecution.
9. P.W.1 is the inquest mahazar panch and he also speaks with regard to the illicit relationship of the accused with the deceased, but he has not supported the case of the prosecution and he has been treated as hostile. P.W.2 is Police Constable who worked as a carrier to carry the FIR to the jurisdictional Magistrate.
P.W.3 is also a constable who carried the dead body for post mortem and after post mortem, he handed over the body to his relatives and took out the clothes of the deceased and the same were seized as per mahazar-
Ex.P.2. P.W.4 is the husband of the deceased and he is also a complainant. He speaks with regard to the illicit relationship between the deceased and the accused and on the date of the alleged incident, about 5.30 a.m., he went to the house of his mother-in-law. There, he found the dead body of his wife with injuries and thereafter, he informed the same to the mother of the deceased. At that time, she told him that on the previous night, accused came to her house and on the basis of said statement, he lodged a complaint with the police as per Ex.P.3. He is also a witness to the spot mahazar-Ex.P.4.
P.W.5 is also a witness who speaks with regard to the illicit relationship of the accused and the deceased and he also speaks with regard to a panchayath held in respect of the said illicit relationship between the deceased and accused and the accused has been properly advised to give off the relationship with the deceased. He is also a witness to the seizure mahazar- Ex.P.2 and spot mahazar-Ex.P.4. P.W.6 is a witness who also reiterates the evidence of P.W.4 and he is also a witness to the recovery of towel as per Ex.P.5. P.W.7 is the daughter of the deceased and she speaks about her mother going to the house of P.W.8 and also speaks that she knows about accused coming to her grand- mother’s house and the deceased used to bring him to her house. She has also deposed that at about 6.00 a.m., on 21.12.2012, after coming to know from the villagers that the accused had been to her grand- mother’s house, she went there and found her grandmother weeping. She saw the dead body of her mother and when she enquired her grand-mother, her grand-mother told that the accused had killed her.
P.W.8 is the mother of the deceased and she has also deposed that she knows the accused and the accused came to her house and asked her daughter to bring food and on that day, her daughter brought food for him. Her son-in-law’s legs were operated due to an accident. The accused used to visit her house. On that night, the accused was asked by deceased to give back a sum of Rs.20,000/- loan amount and they went inside to talk about that. Thereafter, the accused murdered her daughter and ran away. In the morning, she noticed the dead body of her daughter. P.W.9 is the brother of the deceased and he had held a panchayath in this regard.
P.W.10 is a witness who speaks about accused often visiting the house of the deceased. He has not supported the case of the prosecution.
10. P.W.11 is the pancha to spot mahazar at Ex.P4 and the seizure mahazar at Ex.P5 under which a towel has been seized. He has also not supported the case of the prosecution. PW12 is the spot mahazar pancha to Ex.P7. He has also not supported the case of the prosecution. PW13 is the brother of the deceased, he speaks about the illicit relationship with the accused and assault committed by the accused. PW14 is the Junior Engineer who has drawn the sketch of the scene of offence as per Ex.P8. PW15 is the Panchayath Development Officer who has issued Ex.P9 House tax property extract. PW16 is the Probationary PSI who produced the accused and he recorded the voluntary statement and he is also a witness to the recovery mahazar at Ex.P5. PW17 is the panch witness to Ex.P5. He has not supported the case of the prosecution and he has been treated as hostile. PW18 is also spot mahazar pancha to Ex.P7. PW19 is the doctor who conducted autopsy over the body of the deceased and issued post mortem report as per Ex.P10 and after examination of the towel he has also given his opinion as per Ex.P12. PW20 is the Investigating Officer who partly investigated the case and PW21 is also the police inspector who investigated the case and filed the charge sheet as against the accused/appellant.
11. With the above evidence, let us consider the submissions made by the learned counsel for the accused/appellant and the learned High Court Government Pleader.
12. Admittedly, the entire case rests upon the circumstantial evidence. There are no eyewitnesses to the alleged incident. It is well established principles of law that whenever the case rests upon the circumstantial evidence, in order to bring home the guilt of the accused all the circumstances are to be so linked up with one another and the Court will be in a position to see that if all the chain of events and important links have been established by the prosecution, then it is said that, the case of the prosecution has been proved. Keeping in view the said proposition of law, let us consider what are the circumstances on which the prosecution is intending to rely upon its case.
13. The first circumstances on which the prosecution has relied upon is that the death of the deceased Shivamma is a homicidal death. In order to establish the said fact, the prosecution has relied upon the evidence of PW19 the doctor who conducted the autopsy over the body of the deceased. PW5 is the inquest mahazar pancha to Ex.P2. As could be seen from the evidence of PW19 Dr. Puttaswamy, in his evidence he has deposed that on 22.12.2012 as per the request of the investigating officer he has conducted autopsy over the body of the deceased. He has deposed that when he examined the deceased he noticed puffiness of face is present, eyes were closed, lids swollen, sub conjunctival hemorrhages present in both the eyes. Tip of the tongue protruded and bitten between the front teeth. A black mole present on the right collar bone region. Another black mole present on the left forearm, flexor aspect of upper one third. Marbling present on both the shoulder girdles. Abdomen distended. Greenish discoloration present on the lower abdomen. Finger nails were bluish purple in colour. Pubic hair black in colour. He has also given his opinion that death is due to asphyxia as a result of smothering and pressure on the neck. Thereafter, he has further deposed that as per the request of the Investigating Officer he has examined the towel which has been sent to him and he has given his opinion that the injuries mentioned in the post mortem report can be possible when the towel is used in the manner, the towel is tied on the nose, mouth, neck and death can be caused.
14. Even PW4 husband of the deceased has deposed that he went and saw at about 5.00 A.m. there were injuries over the body of the deceased and even PW5 is also a witness to the inquest mahazar Ex.P2, they also corroborate the evidence of PW19 Doctor who has mentioned the injuries.
15. By going through all the materials which have been placed on record it clearly goes to show that the death of the deceased is a homicidal death. Even during the course of evidence and argument the said fact has not been seriously disputed by the accused. Under such circumstances, it can be safely held that the prosecution has proved that the death of the deceased Shivamma is a homicidal death.
16. The next circumstance on which the prosecution is intending to rely upon is motive, and there was illicit relationship between the deceased and the accused. As could be seen from the evidence of PWs.4, 5, 6, 7 and 8 all these witnesses have categorically deposed that there was a illicit relationship between the deceased and the accused, even as per the evidence of PWs.5 and 6 they have categorically deposed that prior to the alleged incident a panchayath was also held, it has been advised to the accused to cut off his relationship with the deceased and even nothing has been elicited so as to disbelieve the evidence of these witnesses. Even no denial has also been made in this behalf during the course of cross-examination. Even as per the case of the prosecution it is the case of the prosecution that the accused has also borrowed a sum of Rs.20,000/- from deceased and in spite of the panchayath he continued the relationship and on the date of the alleged incident there was some altercation between them in respect of payment of the said amount and because of the said act the accused has committed the alleged offence in this behalf.
17. On close reading of the evidence of PW8 she has deposed that one and half years’ back accused came to her house, when she asked, he told her that he has asked deceased to bring food, her daughter brought food. She has further deposed that again accused called over the phone to deceased, again she asked accused, he told he has to take money and on that night accused was there in the house. Even during the course of cross- examination, the said aspect has not been denied.
18. Even though during the course of argument, the learned counsel for the accused/appellant submitted that the conduct of PW8 is not fair and reasonable and even though as per the evidence of PW4 her evidence is not acceptable and believable. He has drawn our attention to the evidence of PW4 wherein he has deposed that in order to over come his problem of facing the trial, he has filed the complaint and as per the say of CWs.4, 7 to 9 he has given the complaint and on behalf of him a complaint was got written and other aspects. Merely because such elicitation has been done, during the course of cross-examination the entire evidence of PW8 cannot be brushed aside, that too when her evidence has not been denied, her evidence will not be shaken.
19. As could be seen from the evidence of PW8, it clearly goes to show that on the date of the alleged incident the accused came to the house of PW8 and even the deceased brought food as per the say of the accused and thereafter they have slept in the room and thereafter in the morning the body of the deceased was found. Though during the course of argument it has been submitted by the learned counsel for the appellant that PW8 was also residing and as such the evidence of last seen together is not acceptable, when the presence of the accused has been established by the prosecution and thereafter both slept in a room is not denied. Then under such circumstances, the burden shifts upon the accused to disprove that he was not present and if at all if it is proved, then under such circumstances, at what time he has departed from the company of the deceased. In the absence of such proof or evidence, the only presumption is that it is the accused who has committed the alleged offence.
20. On close reading of the cross-examination of PW8 nowhere the presence of the accused has been disputed and even it has not been suggested that at what time he has left the company of the deceased.
21. Though during the course of argument, the learned counsel for the accused/appellant specifically submitted by referring to the conduct of the mother of the deceased, it all depends on the facts and circumstances of each case. Even as could be seen from the evidence of PW4 even though after the incident when PW4 went to the house of PW8, at that time she was sleeping, then under such circumstances what has been transpired inside the room, when she was sleeping outside she may not have noticed and only when PW4 came to the house she might have noticed the alleged incident. Under the said facts and circumstances, the argument which has been advanced cannot be acceptable. By looking from any angle, the evidence which has been produced in order to establish the last seen theory, it is also covered by the prosecution.
22. The last leg on which the prosecution is intending to rely upon is that of the recovery of the towel which has been used for the purpose of commission of the alleged offence from accused. As could be seen from the evidence of PW16, immediately after production of the accused, the voluntary statement of the accused was recorded as per Ex.P17 and in pursuance of the voluntary statement he along with PW6, PW11 and 17 went to the place and there the accused produced MO.6 the towel and the same was seized by drawing the mahazar as per Ex.P5.
23. Even though during the course of argument, the learned counsel for the accused/appellant submitted that the description which has been given in Exs.P5 and P12 differs, it is not the same material object which has been seized at the time when Ex.P5 was drawn and one which has been sent to the doctor PW19 for his opinion as per Ex.P12 are different, but we have given our conscious attention to Exs.P5 and P12 and other material which has been produced in this behalf. Though the colour and other material differs, as could be seen from the said material, it clearly goes to show that the said towel was a cryptic towel and the same has been produced by the accused on the basis of the voluntary statement. Under the said facts and circumstances the contention of the learned counsel for the accused/appellant is not acceptable in this behalf. During the course of cross-examination it has not been suggested that it is planted and what was the animosity of investigating officer to plant it. In that light also it is not acceptable.
24. It is well settled principles of law that the men may lie but the circumstance will not. Looking from all the angles the circumstances which have been relied upon by the prosecution does not creates a doubt and it only point out the guilt of the accused, accused alone and no one else. We are conscious of the fact that if two views are possible, the one which is beneficial has to be given to the accused, no such case has been made out by the accused to take other view.
25. On close reading of the material, we are of the considered opinion that no possible view except pointing out the guilt of the accused. Under the said facts and circumstances though the evidence which has been adduced having some contradictions and omissions, they are not the major contradictions and omissions so as to discard the case of the prosecution in its entirety. We have given our conscious attention to the evidence and material placed on record and we are of the considered opinion that the accused, accused alone is liable to the guilt of the accused.
26. We have carefully and cautiously gone through the judgment of the trial Court, the trial Court has relied upon the entire voluntary statement of accused marked at Ex.P17, but on reassessing the evidence we are of the considered opinion that whatever the finding which has been given by the trial Court is correct, there is no perversity or illegality and does not require any interference.
27. The accused/appellant has not made out any good grounds so as to interfere with the order of the trial Court. The same deserves to be confirmed. Accordingly, the appeal is dismissed as devoid of merits.
Sd/- JUDGE Sd/- JUDGE *BNV/AP