IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08th DAY OF DECEMBER, 2017 PRESENT THE HON’BLE MRS.JUSTICE K.S.MUDAGAL AND THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.553/2012 [C] BETWEEN :
Mekeria B. Pavi Chengappa @ Praveena S/o late Belliappa Aged 26 years Agriculturist, Chennangi Village, Virajpet Taluk, Madikeri.
(By Sri D. Nagaraja Reddy, Advocate) AND :
The State of Karnataka By CPI, Madikeri Town Circle.
… Appellant … Respondent (By Smt. Namitha Mahesh B.G., HCGP) This criminal appeal is filed under Section 374(2) Cr.P.C praying to set aside the judgment and order of conviction and sentence dated 31.01.2012/04.02.2012 passed by the Ad-hoc District Judge & P.O. FTC., Kodagu, Madikeri in S.C.No.36/2007 convicting the appellant/accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code.
Appeal reserved on: 09.09.2017; Judgment pronounced on: 08.12.2017.
This criminal appeal having been heard, reserved for judgment on 09.09.2017 and coming on for pronouncement of judgment, this day, B.A.Patil, J., delivered the following:-
J U D G M E N T This appeal is preferred by the appellant-accused assailing the judgment and order of conviction and sentence dated 31.01.2012/04.02.2012 passed by the Fast Track Court, Kodagu Madikeri in SC.No.36/2007.
2. The case of the prosecution in brief is that accused nurtured animosity against his mother B.Saroja for not giving him money to meet his expenses out of the sale proceeds of coffee seeds. In this context, he used to quarrel with his mother every day. In that light, on 15.3.2007, at about 2.30 p.m., at Channangi when his mother B.Saroja was working in the kitchen, accused fired towards her from backside with 12 bore single barrel gun the licence of which stood in the name of his mother B.Saroja. Due to gunshot injuries, Smt.B.Saroja died.
Accused being the son of the deceased with an intention to screen the evidence, shifted the dead body from kitchen to the bedroom. Thereafter, he removed the gold chain weighing about 13.900 grams from the neck of the deceased and went out of the house by locking the house. Thereafter he took away 12½ bags of robusta coffee seeds and sold the same. He also pledged the gold chain of the deceased. It is further case of the prosecution that as the deceased B.Saroja was not responding to phone calls of his relative, on his telephone request, PW.1 visited the house of the deceased and observed through window and found the dead body of a woman and foul smell. Thereafter, he filed a complaint before the jurisdictional police. On the basis of the said complaint, a case was registered against the accused. After completion of investigation, police filed the charge sheet against the accused. After following the procedure under Section 207 of Cr.P.C., the case was committed to the Court of Sessions. After committal of the case, the Sessions Court took the cognizance and after securing and hearing the accused before charge, framed the charge to which the accused pleaded not guilty and claimed to be tried.
3. In order to prove its case, the prosecution in all examined twenty-eight witnesses as PWs.1 to 28 and marked the documents as per Exs.P1 to P28 and MO.Nos.1 to 19. After closure of the evidence of the prosecution, the accused was examined under Section 313 Cr.P.C. with reference to incriminating materials against him. However, accused did not lead any evidence defence.
4. We have heard Sri D.Nagaraj Reddy, learned counsel appearing for the appellant-accused and Smt.Namitha Mahesh B.G., learned HCGP appearing on behalf of the respondent-State.
5. Learned counsel for the appellant-accused has contended that the impugned judgment is not sustainable in law. The trial Court has committed a serious error in holding that the appellant guilty of the offence punishable under Section 302 of IPC. As there are no eye witnesses to the incident in question, the entire case rests on the circumstantial evidence and in order to substantiate its case, the prosecution has to prove the chain of events. But the prosecution has utterly failed to prove the same. He has further contended that the seizure mahazar has been drawn in the Police Station and recovery has also not been proved in accordance with law. When the prosecution has utterly failed to prove its case, the trial Court ought to have acquitted the accused. He has further contended that the motive for the alleged offence has not been clearly established by the prosecution to hold that the accused is guilty of the alleged offence. On these grounds, he prayed to allow the appeal by quashing the impugned order. In the alternative, he has contended that the trial Court has erred in sentencing the accused to undergo imprisonment till last breath since he is aged about 38 years and he has to go a long way. Under such circumstances, he prays for reducing the sentence to life imprisonment and to give other benefits as contemplated under the statute.
6. Per contra, the learned HCGP has vehemently contended that there is a clear evidence to show that the accused had animosity with the deceased as she was not giving money to him to meet his expenses and there are witnesses who have last seen the accused and the deceased together and thereafter she was found dead. When the accused came back to the house to take away the bags of coffee seeds and when his friends asked him about the foul smell, he gave a different version which itself indicates that the accused with a criminal intention has caused the death of the deceased. She has further contended that on the basis of the voluntary statement given by the accused, gun and bloodstained clothes were recovered and the accused has not explained as to under what circumstances he was in possession of the said gun and bloodstained clothes. The prosecution has clearly established all the circumstances to prove the guilt of the accused. On considering the entire material on record, the trial Court has rightly convicted the accused who has brutally murdered his own mother. The appellant has not made out any ground to interfere with the impugned order and hence the same needs to be confirmed. On these grounds, she prayed for dismissal of the appeal.
7. As aforesaid, the prosecution has examined 28 witnesses to prove its case.
(i) PW.1 is the resident of Channangi Village. He has deposed that when he was in Abbur Village, on 19.3.2007 at about 2.30 p.m., he received a phone call from CW.2 Aboobakar of Channangi Village noticing about foul smell coming out of the house of Smt.Saroja and flying of house flies around the house. Thereafter, he went to the house of the deceased along with Aboobakar and found through the window that there is a dead body of a woman inside the house. The door was also broken and coffee seeds were scattered. After coming to know that Saroja has been murdered, he went to the Police Station and filed the complaint as per Ex.P1. During the course of cross- examination, it has been elicited that accused Pavi Chengappa was moving around the house of Smt.Saroja, being suspected, he filed the complaint. Except that nothing has been elicited from the mouth of this witness.
(ii) PW.2 is the witness who is running a Provision Store near the house of the deceased Saroja. He has deposed that on 18.3.2007 at about 2.00 p.m., when he was in his house, uncle of the accused telephonically informed him that since 3 to 4 days he is calling the deceased over phone, but no response, for which he revealed that on the very day, accused along with two others had come to his shop and accused informed that his mother Saroja has been admitted to the hospital. PW.2 has further deposed that uncle of the accused informed the said fact to the sister of the deceased and the brother of the accused. Thereafter, PW.1 went to the house of Saroja and noticed foul smell emanating from the house of the deceased and flies around. He also noticed that coffee seeds were scattered. He is also the witness to Ex.P2, the spot mahazar and Ex.P3, the seizure mahazar. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness.
(iii) PW.3 is the witness to Ex.P4, the spot mahazar.
(iv) PW.4 has deposed that the deceased is her co-sister.
Accused is the second son of the deceased. Deceased Saroja used to look after the property of Bellappa and accused Pavi Chengappa was also staying with her. The first son of the deceased Sharanu is residing in Bangalore. She has further deposed that whenever she comes to Channangi Village, she used to stay in the house of the deceased. On 13th, 14th and 15th of March, when she telephoned to speak with Saroja, nobody lifted the phone and again she telephoned on 19th of March. As there was again no response on the other side, she informed the said fact to her husband, who in turn called PW.2- Aboobakar over phone and asked him to see as to why nobody is lifting the phone in the house of the deceased Saroja. She has further deposed that PW.2 went to the house of Saroja and informed that he noticed foul smell emanating from the house of the deceased and flies around. Thereafter, when they came to the house of the deceased, they noticed that so many people gathered near the house of the deceased and when they saw through the window, they found the dead body of Saroja. She has further deposed that the police have drawn the spot mahazar, and got her signature on the said mahazar. During the course of cross-examination PW.4 has admitted that the accused Pavi Chengappa was working in Bengaluru, but at the time of incident he was at Channangi Village. She has also admitted that she informed the police that accused used to quarrel with his mother demanding money.
(v) PW.5 has deposed that his wife informed over the phone that Saroja was not there in the house and the same has been informed by Aboobakar and Poonaccha. Thereafter, he went along with Poonaccha to the house of Saroja and noticed the foul smell emanating from the house of the deceased and houseflies around. He also noticed that a female body lying inside the house and the accused/son of Saroja was not seen and as such he suspected the accused. He has further deposed that prior to the incident in question, deceased Saroja had come to his house once or twice and at that time she told that her son Pavi Chengappa was ill-treating and threatening her for the purpose of money and therefore he advised the accused suitably in this regard. During the course of cross-examination PW.5 has admitted that he and accused belong to the same family. He has also admitted that one year prior to the incident, Saroja used to come to his house and inform about the harassment of the accused.
Except that nothing has been elicited from the mouth of this witness.
(vi) PW.6 is a panch witness to recovery at the instance of the accused. He has deposed that on 20.3.2007 police called him near the house of the deceased and seized the broken lock at the instance of the accused. Thereafter they entered the house of the deceased along with the accused. The accused showed the place where he kept the dead body of his mother and he also showed a single barrel gun beneath the cot and also empty cartridge, which were seized by the police. Accused also produced the pant and shirt, which were also seized by the police. They also seized the cloth used for the purpose of wiping the blood stains. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness.
(vii) PW.7 is a pawn broker, who has deposed that on 31.3.2007 police called him to the Police Station, where he informed about pledging of the gold chain with him by the accused. He got released the said chain which was kept in the shop of Sait and produced the same before the police. The said chain was seized by the police as per Ex.P6, the seizure mahazar. Thereafter, he was taken to the shop of the Sait, where the police seized the pawn broker license, pawn ticket and receipt, etc. by drawing a mahazar as per Ex.P10. During the course of cross- examination, PW.7 has deposed that he obtained the receipt from the shop of Sait for having pledged the gold chain and the same was not stated before the police. He has admitted that he signed both seizure mahazars in the Police Station.
(viii) PW.8 is a businessman dealing with selling of guns and cartridges. He has deposed that on 15.3.2007 Smt.Saroja came to his shop and informed that she is unwell and she wants to go to hospital and as such she requested him to hand over one cartridge to his son after he showing the license and she also signed in the Register maintained in the shop. He has further deposed that on the same day Pavi Chengappa came to his shop and took a live cartridge by showing the licence. The accused also subscribed his signature for the same. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness.
(ix) PW.9 is the driver who took the deceased Saroja and accused in his taxi to the hospital at Virajpet and thereafter took them to Devanahalli. He has further deposed that the accused had left a key bunch in his car when he had gone for dropping the mother of the accused. He has further deposed that on 16.4.2007 he produced the said key bunch before the police when they called him to the Police Station and same was seized by drawing the mahazar Ex.P13. During the course of cross- examination, nothing has been elicited so as to discard the evidence of this witness.
(x) PW.10 is the neighbourer of the deceased, who has deposed that about two years’ back he saw a red car near the garden of the accused. But, he has not supported the case of the prosecution and treated as hostile.
(xi) PW.11 is the sister of the deceased. She has deposed that in order to convey her wishes in relation to Ugadi Festival, she called Saroja over phone, but nobody lifted the phone. She again telephoned, but there was no response, hence she informed the said fact to her another sister who is residing near the house of PW.2-Aboobakar. But she told that she does not know anything. PW.11 has further deposed that thereafter her sister telephoned to PW.2-Aboobakar and asked him to ascertain as to whether Saroja is in the house or not for which PW.2 informed that accused Pavi Chengappa had come two days’ back and told that her mother Saroja has been admitted to the hospital at Madikeri. Thereafter, she suspected and requested Aboobakar to go and verify. When they went near the house of Saroja, they noticed foul smell emanating from the house of the deceased and they found the dead body of Saroja in the bed room. They also noticed the bloodstains in the bedroom and the phone lying on the ground. During the course of cross- examination, PW.11 has admitted that accused Pavi Chengappa is working in Bangalore.
(xii) PW.12 is the resident of Channangi Village, who has deposed that on 19.3.2007 at about 1.30 p.m, when he was at home, he received a phone call from Raja, the uncle of the accused asking him whether deceased Soraja had come to his house for which he replied that she did not come to his house. Thereafter, at about 9.00 p.m, he came to know about the death of Saroja.
(xiii) PW.13 is a Writer working in the estate at Channangi Village. He has deposed that about 15 days prior to the incident he met the deceased Saroja. She informed that she has grown about 35 bags of coffee beans and her son is harassing her for money. PW.13 has further deposed that he advised the accused not to trouble her mother and at that time accused told that he is in need of money and if the money is not given, he has to see alternative routes. During the course of cross- examination of PW.13, it has been elicited that the estate in which he is working and the estate of Saroja are adjacent to each other. Except that nothing has been elicited from the mouth of this witness.
(xiv) PW.14 has deposed that on 15.3.2007 at about 7.00 a.m. he saw the deceased Saroja and Pavi Chengappa waiting in the bus stand in order to go to the hospital. He has further deposed that on 20.3.2007 at about 5.30 p.m. people have gathered near the house of Saroja and he also reached there and came to know that accused killed her mother Saroja. During the course of cross- examination nothing has been elicited so as to discard his evidence.
(xv) PW.15 has deposed that about two years’ back accused called him and his brother Kushal in order to transport seven bags of coffee seeds to the forest. Thereafter, they took the said coffee bags to the forest. Thereafter, the accused went to Palibetta with Kushal and brought the jeep. Thereafter, bags of coffee seeds were loaded in the jeep. Accused paid them Rs.130/- each. After few days, they came to know about the death of Saroja. During the course of cross-examination nothing has been elicited from the mouth of this witness.
(xvi) PW.16 has deposed that his known person one Srinivas brought the accused and introduced that his mother is unwell and therefore he is going along with him to Kodagu and he asked him to accompany them. They went to Kodagu in Qualis vehicle belonging to Rajanna and thereafter they went to the house of the accused. The accused broke open the lock with the help of stone and when they asked the accused as to why he is breaking the lock, at that time accused informed that his mother had gone to Madikeri by locking the door. Thereafter, they went to a nearby shop, where the owner of the said shop asked the accused about his mother for which accused told that his mother is not well and has gone to Madikeri. Thereafter, accused got the screwdriver from the owner of the said shop and broke open the lock of the house. At that time, they noticed foul smell and when they asked, accused told that his mother might have kept the fish and the same might have been decomposed. Thereafter, accused told them his mother has to be operated. They helped the accused in shifting the bags of coffee seeds to Qualis vehicle. Thereafter, they went to the Coffee Mill at Palibetta and sold the coffee seeds. During the course of cross-examination nothing has been elicited so as to discard the evidence of this witness.
(xvii) PW.17 is the owner of the pawn broker shop. He has deposed that on 16.3.2007 accused came to his shop to pledge the gold chain and to take the money. As he was not known to him, he did not accept the chain and give the money. On 22.3.2007, accused again came to his shop along with Srinivas to pledge the gold chain. As the accused got introduced by Srinivas, he agreed for pledging the gold chain with him. During the course of cross- examination nothing has been elicited from the mouth of this witness.
(xviii) PW.18 is the driver of the jeep who went along with the accused and carried seven bags of coffee seeds to Coffee Mill for selling the same. During the course of cross-examination nothing has been elicited from the mouth of this witness.
(xix) PW.19 is the doctor who conducted autopsy of the body of the deceased Saroja and issued the post mortem report as per Ex.P15.
(xx) PW.20 is the owner of the Coffee Mill. He has deposed that on 15.3.2007 at about 4.00 p.m. accused came with seven bags of coffee seeds for selling the same and the same were purchased by him by paying Rs.9,600/-. During the course of cross-examination nothing has been elicited from the mouth of this witness.
(xxi) PW.21 is the Police Constable who carried FIR- Ex.P3 to the jurisdictional Magistrate.
(xxii) PW.22 is the ASI who registered the case on the basis of the complaint lodged by PW.1 and issued the FIR.
(xxiii) PW.23 is the brother of the accused. He has deposed that on 19.3.2007 when he was in Bangalore his uncle Raja called him over phone and asked whether his mother Saroja has come to Bangalore. When he informed that she has not come to Bangalore, his uncle asked him to come to Channangi. On the very day at about 11.00 p.m, when he went to Channangi, he came to know that his mother has been murdered. He has further deposed that when he asked Aboobakar, he informed that accused and three others had come to the house of the deceased, broke open the lock with the help of the screwdriver and left along with the bags of coffee seeds by saying that the deceased Saroja was admitted to hospital. He has further deposed that when he saw the dead body of his mother, the gold chain which she used to wear was missing. During the course of cross-examination nothing has been elicited from the mouth of this witness.
(xxiv) PW.24 is the Project Director, working in Office of the Urban Development, Chikkaballapur District. He has deposed that he was working in the Department of issuing the gun licence from 2.7.2007 to 16.3.2009 and as per the requisition he has issued the permission to prosecute the accused under the said Act.
(xxv) PW.25 is an Assistant Director of Forensic Science Laboratory who examined the gun and empty cartridges and issued his opinion as per Exs.P18 and P19.
(xxvi) PW.26 is also an Assistant Director of Forensic Science Laboratory. He has deposed that he examined the seized articles and issued his opinion as per Ex.P21.
(xxvii) PW.27 is the PSI who conducted further investigation and filed the charge sheet.
(xxviii) PW.28 is also an Assistant Director of Forensic Science Laboratory who examined the clothes of the deceased and issued his opinion as per Ex.P27.
8. It is not in dispute that the death of the deceased Saroja is homicidal. However, in order to substantiate the said fact, the prosecution has examined the doctor-PW.19, who conducted autopsy of the dead body and issued PM report at Ex.p15 to the effect that deceased died due to shock and haemorrhage as a result of gun shot injury. Hence, it can safely be held that the prosecution has proved that the death of the deceased is homicidal.
9. From the aforesaid evidence, let us consider whether the prosecution has proved that the accused has committed the alleged offence, beyond reasonable doubt. The records reveal that there are no eyewitness to the incident in question and entire case of the prosecution rests on circumstantial evidence. When a case rests on circumstantial evidence, prosecution has to prove all the links of chain of circumstances on which it relies on. This proposition of law has been laid down by the Apex Court in the case of Shaikh Abdul Hameed and another Vs. State of Madhya Pradesh, reported in AIR 1998 SC 942 wherein at paragraph-8, it is observed as under:-
“8. We have considered the circumstantial evidence in this case and find that all the links of chain of circumstances are unbroken and complete. We are, therefore, of the opinion that circumstantial evidence is consistent with the guilt of the two accused.”
10. It is also well established principles of law that the prosecution has to establish that the circumstances proved lead to one and only conclusion towards guilt of the accused. The evidence produced must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The said dictum is laid down in the case of Rukia Begum Vs. State of Karnataka, reported in AIR 2011 SC 1585 (paragraph-10), as under:-
10. “No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in fanciful manner. In order to sustain conviction circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case. Here in the present case the motive, the recoveries and abscondence of these appellants immediately after the occurrence point out towards their guilt. In our opinion, the trial court as also the High Court on the basis of the circumstantial evidence rightly came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt so far as these appellants are concerned.”
11. The first and foremost circumstance relied upon by the prosecution is the motive for commission of offence. As per the case of the prosecution, accused used to ill-treat and threaten the deceased for demand of money to meet his expenses. In order to prove the said circumstance, the prosecution has relied upon the evidence of PWs.4, 5 and 13.
12. PW.4 has categorically deposed that the deceased used to look after the property and accused used to stay along with her. During the course of cross- examination also, it has been admitted that accused Pavi Chengappa used to quarrel with his mother for the purpose of money to meet his expenses. Even PW.5 has deposed that prior to the incident in question, when the deceased came to his house, she told that her son Pavi Chengappa is harassing her for demand of money and also threatening her. Thereafter, PW.5 called the accused to his house and advised him suitably. Another crowning factor in this case is that of the evidence of PWs.10 and 16. Though PW.10 has turned hostile, he has deposed that about two years back he saw a red car near the garden of the accused. PW.16 has also deposed that when he was in his town, on 18.3.2007 his known person by name Srinivas brought and introduced the accused and took him along with them in Qualis vehicle of Rajanna by saying that mother of the accused is not well. They all went to the house of the deceased, which was locked. Accused broke open the lock and when they asked as to why he is breaking the lock, at that time, accused told that his mother has gone to Madikeri by locking the door. Thereafter accused brought a screwdriver from the nearby shop and opened the lock and at that time, they noticed that foul smell emanating from the house of the deceased. When accused was asked about such smell, he gave a false version saying that his mother might have kept fish which might have been decomposed and also told that his mother has to be operated. He took the bags of coffee seeds with the help of PW.16 and Srinivas in Quails vehicle to take them to Coffee Mill for selling the same. The acts of the accused would indicate that the accused was having an intention and motive to cause the death of the deceased so as to get money to meet his expenses.
13. Another important factor is that accused has taken the gold chain from the body of the deceased and pledged the same with PW.17 with the assistance of Srinivas and got the money from PW.17. If all these factors are analyzed together, it clearly indicates that the accused with a mala fide intention to grab the money by selling the coffee beens as well as the gold chain has caused the death of the deceased Saroja. In this behalf, the prosecution has clearly established the circumstance of motive behind the crime.
14. The next circumstance which is relied upon by the prosecution is last seen theory. To prove the said circumstance, the prosecution has relied upon the evidence of PW.14, who has deposed that on 15.3.2007 at about 7.00 a.m., deceased Saroja and accused were waiting in the bus stand to go to hospital. After coming to know that the people have gathered near the house of the deceased he went there and saw the dead body being brought out of the house. This fact clearly indicates that though the accused was working in Bengaluru, on 15.3.2007, he was present at Channangi along with his deceased mother. Under such circumstances, the accused has to explain about the death of his mother. In the absence of such explanation from the accused after they are last seen together, where such presumption in Evidence Act can be drawn that the accused has committed the murder of the deceased Saroja by firing with a single barrel gun and thereafter with an intention to screen the evidence, he has kept the dead body in the house and he also locked the same. This evidence is corroborated by the evidence of PW.16, who has deposed that when they had been to the house of the deceased in Qualis vehicle, accused broke open the lock with the help of screwdriver and at that time, when they asked the accused about the foul smell coming out of the house, he replied that his mother might have kept fish and the same might have been decomposed. He also told them that his mother has gone to Madikeri by locking the door. This version clearly indicates that the accused has committed the alleged offence and in order to screen the same, he went on giving one or other false version. If really he was innocent, he ought not have given false reason.
15. The next circumstance on which the prosecution has relied upon is that the deceased introduced the accused to PW.8 who is running the business of selling the arms and cartridges. PW.8 has deposed that on 15.3.2007, the accused came to his shop and took the cartridges by showing the license standing in the name of his mother and putting his signature in the Register, which has been recovered by the police at the instance of the accused. The prosecution has relied upon the evidence of recovery of single barrel gun and also the cloth which has been used to wipe the bloodstains on the wall. In this behalf, the prosecution has relied upon the evidence of PW.6 who is a witness to recovery mahazar at Ex.P5. PW.6 has deposed that he was called near the house of the deceased and at the instance of the accused the broken lock was seized by the police. He has also deposed about the accused showing the place of firing and recovery of the gun and cartridges by the Police which were beneath the cot. He has also deposed about the blood stains in the wall of the kitchen and recovery of the cloth used for wiping the blood stains. In order to discard this evidence, nothing has been elicited during the course of cross-examination. When incriminating materials were recovered at the instance of the accused, including the gold chain and considering the conduct of the accused, it inspires the confidence of this Court that accused has committed the alleged crime. Even as could be seen from the evidence of PW.25, the Assistant Director of FSL who has deposed that he has examined the articles and has given his opinion stating that the single barrel gun was in working condition and there are symptoms of firing and the distance which can be covered is 40 feet and Item No.2, the empty cartridge has been fired from the said gun. He has also given his opinion to the effect that the holes found on the nightie of the deceased can be caused with the said cartridge and the said holes have been caused by firing at a distance of 6 to 9 feet. This evidence is also corroborated with the evidence of PW.19, the doctor who has conducted postmortem examination. When it is a specific case that the accused in order to extract money from the deceased was harassing and quarrelling with her and when she refused to give money, with an intention to kill her, he fired with the single barrel gun-MO.No.1 and thereafter he took the gold chain of the deceased. He pledged the said chain with PW.17 with the help of one Srinivas. He also sold the coffee seeds to PW.20 for Rs.9,600/-. Hence, the entire evidence relied upon by the prosecution clearly indicates that the accused has caused the death of his mother in the kitchen and thereafter in order to screen the evidence, he concealed the dead body and also the incriminating materials in the bedroom. There are no circumstances brought by the defence, so as to discard the evidence of the prosecution.
Even the accused has not given any explanation in the statement recorded under Section 313 of Cr.P.C. in respect of the death of the deceased. When the prosecution has established the fact that the deceased and accused were staying in the house of the deceased and they were last seen together, then under such circumstances, if ultimately the mother is found dead it is for the accused to explain the said fact with cogent reasons and acceptable evidence. In the absence of any such explanation by the accused, prosecution evidence that the accused has committed the murder of the deceased Saroja has to be accepted.
16. We have carefully and cautiously gone through the impugned judgment and order of conviction. The trial Court after considering all the aspects and the evidence placed on record has rightly convicted the accused. There are no circumstances brought before us so as to set aside the impugned order and as such, the same is liable to be confirmed.
17. Learned counsel appearing for the appellant- accused contended that the sentence imposed on the accused appears to be too harsh and therefore he prays for reducing the same. If the accused has committed the murder of the deceased Saroja, it is only because of the family dispute and there was no gravity in the alleged offence and even the said murder is not so brutal so as to impose the sentence on the accused to undergo imprisonment for life till his last breath.
18. The trial court has sentenced the appellant for the offences punishable under Section 302 of IPC to imprisonment for life till his last breath, that is the maximum sentence out of the sentences imposed on him.
19. We have considered the submission made by the learned counsel for the accused and the learned Additional Government Advocate.
20. In Tattu Lodhi Alias Pancham Lodhi Vs.
State of Madhya Pradesh [(2016) 9 SCC 675] on the sentencing policy, the Hon’ble Supreme Court has held as follows:
“The innovative approach reflected in the aforesaid judgments, on the one hand helps the convict in getting rid of death penalty in appropriate cases, on the other it takes care of genuine concerns of the victim including the society by ensuring that life imprisonment shall actually mean imprisonment for whole of the natural life or to a lesser extent as indicated by the court in the light of facts of a particular case. Since there is no party who is actually a loser on account of such an approach in appropriate cases, we feel no hesitation in accepting the submissions advanced by the appellant. Hence, the law is reiterated that in appropriate cases where this court is hesitant in maintaining death sentence, it may order that the convict shall undergo imprisonment for whole of natural life or to a lesser extent as may be specified”.
(emphasis supplied) 21. It is no doubt true that the appellant was aged about 26 years when he was brought for trial. But the fact remains that in breach of the trust of his mother for the sake of money he committed her murder. The records show that the gun of which licence stood in the name of the mother of the appellant is used for the commission of the offence by him. The records further show that trusting the appellant the victim mother authorized the ammunition vendor to hand over the cartridges to the appellant himself. She did not even imagine that the appellant uses it to kill her.
22. The subsequent conduct of the appellant shows that he never had any remorse for killing his own mother which she had never anticipated. After killing the victim, the appellant takes away her jewels locking the house and pledged them. Further, after few days he comes back to the house (scene of crime) to collect coffee seeds to make money out of that. Since he had lost the key of the house he opens the same using the screwdriver. By that time dead body had decomposed and emanating foul smell. When the persons brought by the appellant to load and transport the coffee seeds, enquired about the foul smell, he tells them that his mother had gone to Madikeri hospital and the foul smell may be because of the rotten fish which might have been left in the kitchen.
23. At that time he knew that he has committed the murder of his mother and the foul smell is of the dead body. Then he loads the coffee seeds, again closes the door and goes away. This shows that the appellant had no remorse and no panic about the crime committed by him.
24. He has done all such acts for the sake of money and in utter breach of his mother’s trust who gave him birth, fed him and brought him up. Therefore, it cannot be said that the appellant has committed the offence due to grave and sudden provocation. While awarding the sentence, the court has to bear in mind the nature, the circumstances of the offence, the background of the victim, social background of the accused, the economic and mental condition, prospects of rehabilitation, absence of mens ria, instigation and influence, state of health of the accused, gravity of the offences, whether the accused is habituated and whether the offence has been well planned and effect of the same on the society. The back ground of the case discussed above shows that the accused had planned the murder of his own mother, executed that and he had no remorse for his action.
25. In the above circumstances, there is no justification for restricting the sentencing of life imprisonment of the appellant to 14 years as contemplated under Section 433(b) of Cr.P.C. However, having regard to the age of the accused and the sentence quantified in Tattu Lodhi Alias Pancham Lodhi’s case, referred to supra, interest of justice will be met by modifying the sentence of imprisonment for the whole natural life imposed by the trial court to the life imprisonment for a term upto 20 years without any right of remission of sentence. Therefore, the appeal is partly allowed.
26. The order of conviction dated 31.01.2012 of the accused recorded by the trial court in SC.No.36/2007 for the offences punishable under Sections 302 and 201 of IPC is hereby confirmed.
27. The order of sentence dated 04.02.2012 for the offence punishable under Section 302 of IPC is modified. The accused/appellant is sentenced for the offence punishable under Section 302 of IPC to imprisonment for life, the term of which shall extend upto 20 years without any remission in the same. The rest of the impugned judgment is maintained.
Sd/- JUDGE *ck/-EM/-
Sd/- JUDGE