IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13H 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.174 OF 2014 BETWEEN:
Smt.Nagamma, W/o Late Rajanna, Aged about 48 years, House wife, Residing at Kithanahalli, Dasanapura Hobli, Bengaluru North Taluk-560 035. …Appellant (By Sri.K.M.Murari Mouni, Advocate) AND:
State of Karnataka, Rep. by Madanayakanahalli Police Station, Nelamangala Circle, Bengaluru (N) Taluk, Bengaluru -560 015. .. 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 of conviction dated 31.12.2013 and order on sentence dated 2.1.2014, passed by the Prl.Sessions Judge, Bengaluru Rural District, Bengaluru, in S.C.No.214/2011, convicting the appellant/accused for the offence punishable under Section 302 of IPC. The appellant/accused is sentenced to undergo imprisonment for life and pay fine of Rs.10,000/-, in default of payment of fine, she shall undergo rigorous imprisonment for a period of six months for the offence punishable under Section 302 of IPC.
This Criminal Appeal coming on for hearing this day, Dr.H.B.Prabhakasa Sastry, J., delivered the following:
JUDGMENT The present appellant who was accused No.1 in S.C.No.214/2011, in the Court of Principal Sessions Judge, Bengaluru Rural District, Bengaluru, (hereinafter for brevity referred to as `trial Court’), has challenged the judgment of conviction dated 31.12.2013 and order on sentence dated 2.1.2014, wherein she is convicted for the offence punishable under Section 302 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC’), and sentenced to undergo imprisonment for life and to pay fine of `10,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months.
2. The summary of the case of the prosecution is that on 5.1.2011, at about 10.30 a.m., the complainant – PW-1 Chowdaiah, appeared before the respondent- police and lodged a written complaint. The summary of the said complaint is that deceased U.C.Mahesh, who is son of the complainant, was working in a private establishment at Bengaluru. The brother-in-law of the complainant by name Rajanna was also working at Bengaluru and has daughter by name Vidya. It was agreed between the elders of both side that said Vidya be given in marriage to said Mahesh, as such, both side by contributing money, purchased a site in a village called Kithanahalli, Dasanapura Hobli, Nelamangala Taluk, wherein a residential building was also put up.
In the said house, said Rajanna with his family along with deceased Mahesh were residing. However, about eight to nine months prior to the date of the incident, said Vidya, the daughter of said Rajanna, fell in love with another boy and married him. Rajanna also died subsequently. However, deceased Mahesh continued to stay along with Smt.Nagamma, the wife of deceased Rajanna and her children in the said house at Kithanahalli. In the meantime, the marriage engagement of said Mahesh with another girl was performed, after which, said Mahesh started asking said Smt.Nagamma to vacate from the house which she refused and on the contrary, suggested that she would give Mahesh a sum of `3 lakhs, by receiving which, Mahesh should vacate the house leaving the entire property to her and her family. On 4.1.2011, after midnight at about 2.00 a.m., said Nagamma telephoned the complainant stating that Mahesh, due to excess consumption of liquor, has fallen in the house and has been admitted to the hospital. Hearing the said information, when the complainant, joined by other people, went to the said house, he noticed that the body of his son Mahesh was lying on a diwan (a cot- cum-sofa like furniture). These people noticed injuries on his right hand and on the right side of abdomen. These people also noticed the flow of blood on the floor in the hall portion of the house, Television glass was found broken, so also, the earthen pots and the blood had flown to the outer part of the house also. Suspecting that his son Mahesh was killed in the said place by using some weapon, the complainant lodged the complaint, which was registered by the respondent- police against the present appellant – Nagamma and five others for the offence punishable under Sections 143, 120-B, 302 read with Section 149 of IPC.
3. After conducting investigation, the police filed charge sheet against three accused, dropping accused Nos.4, 5 and 6 on the ground that no materials were found against those three accused.
4. Charges were framed against the accused for the offence punishable under Section 302 read with Section 34 of IPC. Since the accused pleaded not guilty, in order to prove the alleged guilt against the accused, the prosecution got examined sixteen witnesses as PW-1 to PW-16 and got marked documents from Exs.P-1 to P-15(a) and material objects at MO-1 to MO-18. On behalf of the accused, no witnesses were examined, however, two documents at Exs.D-1 and D-2 were got marked. After hearing both side, the trial Court by its impugned judgment of conviction dated 31.12.2013 and order on sentence dated 2.1.2014, convicted appellant/accused No.1 for the offence punishable under Section 302 of IPC and sentenced her accordingly, however, it acquitted accused Nos.2 and 3. It is against the said judgment of conviction and order on sentence, the appellant/accused No.1 has preferred this appeal.
5. The lower Court records were called for and the same are placed before this Court.
6. Heard the arguments from both side and perused the materials placed before this Court.
7. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
8. The learned counsel for the appellant/ accused No.1 in his argument submitted that admittedly there are no eye witnesses to the alleged incident, as such, the entire case of the prosecution is based on circumstantial evidence. Though the place of incident is not in dispute and that the nature of death of the deceased is not under normal circumstance, but, there are no materials to hold that the death of the deceased was a murder and that it is the present appellant only who has committed the said murder. Learned counsel further submitted that the evidence of prosecution witnesses has not been properly appreciated by the trial Court in its proper perspective. Merely because the incident is said to have taken place in the house where the appellant and the deceased were residing, the trial Court has jumped to a conclusion that it was the appellant herself who has committed the alleged offence. Learned counsel further submitted that the voluntary statement said to have been given by accused No.1/appellant has not been taken in to consideration by the trial Court while appreciating the evidence of prosecution witnesses.
Finally stating that the incriminating statement about the contents of the alleged voluntary statement said to have been given by the appellant/accused No.1 which is said to have been resulted in a recovery, has not been put to accused No.1 while recording her statement under Section 313 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `Cr.P.C.’), for which, the entire judgment deserves to be set aside, the learned counsel prays for allowing the appeal.
9. Learned State Public Prosecutor-II in his argument submitted that the evidence led by the prosecution witnesses and more importantly, the medical evidence clearly go to establish that the death of the deceased which has taken place in the house where the deceased and the appellant were residing together was clearly a homicidal death. He also submitted that the recovery of the glass piece at MO-7 and the blood stained banian at the instance of accused No.1 and the fact that at the time of alleged incident, admittedly it was accused No.1/appellant alone who was present in the said house along with the deceased, clearly go to establish that it was the appellant/accused No.1 and none else have committed the murder of the deceased.
10. PW-1–Chowdaiah and PW-3– Smt.Parvathamma are admittedly the parents of the deceased Mahesh. Both of them in their evidence have stated that accused No.1 – Nagamma is the sister-in-law of PW-2 and that deceased Mahesh was residing with said Nagamma and accused Nos.2 and 3 in a rented house at Sunkadakatte while he was working in a private company. At that time, Sri Rajanna, the husband of accused No.1, was alive. It was decided by him that his daughter Ms.Vidya be given in marriage to Mahesh, in which direction, said Mahesh joined by with Rajanna, had purchased a residential site in a place called Kithanahalli village, Dasanapura Hobli, Nelamangala Taluk and got registered the same in the joint name of himself and Vidya. However, said Vidya eloped with a boy with whom she had fallen in love. She got transferred her right in the site in favour of Mahesh through a registered document. It is thereafter these people put up a residential building in the said house wherein deceased was living along with family of the accused.
Both the witnesses have also stated that after the death of Rajanna, accused No.1 started asking their son Mahesh to vacate the said house, for which, Mahesh was not agreeable. That being the case, on the midnight of 4.1.2011, accused No.1 – Nagamma, telephoned PW-1 and asked him to come over to her house along with his wife immediately and stated that Mahesh due to excess consumption of liquor had fallen. On further enquiry with her, she also stated that said Mahesh was admitted in the hospital and is not in a position to attend the phone call. Immediately these people rushed to the house where Mahesh was residing only to see that his dead body laid on a diwan. When verified, these people noticed injury on the right arm and stab injury on his right side of the abdomen. The spilling of the blood in the floor of the house and broken television glass pieces and broken earthen pots were also noticed by these witnesses in the said house.
Both these witnesses have further stated that when these people went there, though all the accused were present, however, after these people’s visit, one after the other vacated the place. PW-1 stating that he has lodged a complaint with the police in that regard, has identified the same at Ex.P-1.
Both PW-1 and PW-3 were subjected to a detailed cross-examination, wherein they adhered to their original version.
11. PW-2 – C.J.Rangaswamy, has stated that the inquest panchanama on the dead body of the deceased Mahesh was drawn in his presence as per Ex.P-2. He has also stated that when he noticed the dead body, he observed the presence of a lacerated wound on the right hand and a stab injury on the right abdomen.
12. PW-4 - Kempegowda, in his evidence has stated that on 5.1.2011, the police had summoned him and CW-9 near the house of the deceased, where they searched for the incriminating materials i.e., clothes and the weapon. At that time, accused No.1 from the bathroom of the house brought and produced a blood stained gents banian, a saree, a peticot and a blouse, which the police seized by drawing a seizure panchanama as per Ex.P-4. The witness has also stated that a glass piece at MO-7 was also seized under the very same panchanama. The witness has identified those articles at MO-3 to MO-7.
He has further stated that on 9.1.2011, the police summoned him to the very same house and also CW-1. By opening an almirah in the said house, PW-1 shown them a neck-chain and a ring, which also the police seized by drawing a panchanama as per Ex.P-3. The witness has identified those two articles at MO-1 and MO-2.
13. PW-5 – Ningappa, has stated that he knows the family of the deceased, as well that of the accused. He has stated that while putting up the construction at Kithanahalli site by deceased Mahesh, he too has financially helped him. He has also stated that after receiving money from Mahesh, accused No.1- Nagamma and her daughter Ms.Vidya had executed a Release Deed in his favour.
The witness has further stated that after the marriage of Vidya with another person, Mahesh also got engaged to another girl and thereafter, he asked accused No.1 to vacate the said house, for which, the said accused No.1 offered Mahesh that she would pay a sum of `3 lakhs, in return, Mahesh should convey the property in favour of her sons and the same was not agreeable to him.
The witness has further stated that in the early morning of 5.1.2011, at about 3.00 O’Clock, PW-1 - Chowdaiah telephoned to him stating that the condition of his son Mahesh was serious. Accordingly, he joined PW-1 and went to the house of Mahesh and accused No.1, at about 5.00 a.m. or 5.30 a.m., where they saw the lying of the dead body of the deceased Mahesh on a diwan cot. He noticed stab injury on his right abdomen and another injury on his right arm. He also noticed spilling of blood on the floor of the house and also breaking of the showcase glass.
He was subjected to a detailed cross-examination wherein he adhered to his original version.
14. PW-6 – Duggalaiah and PW-7 – Nataraj, who are the residents of the very same village Kithanahalli have stated that they know the deceased, as well the accused. On the night of the alleged incident while they were passing in front of the house of the accused wherein the deceased was also living, they heard yelling noise of the deceased from the said house. Thinking that some quarrel must have been taking place between the deceased and the accused in connection with possession of the house, these people proceeded further. It is at that time they noticed an autorickshaw coming from Bengaluru side carrying two boys and a lady in it. Next day morning, they saw the dead body of the deceased Mahesh in the said house.
15. PW-7 in addition to the above has also stated that, after seeing the autorickshaw coming from Bengaluru side on the night, he went to his house and left the cattle there. Thereafter, he returned back towards his land on the side of the house of the accused and the deceased. At that time, he saw the accused shifting the deceased in an autorickshaw and proceeding towards Bengaluru. Out of curiosity, he peeped through the window of the said house and noticed the broken pieces of flower pots and broken showcase glass and spilling of the blood on the floor.
Both these witnesses were subjected to a detailed cross-examination from the accused side wherein they stood behind their statements made in their examination-in-chief.
16. PW-8 – Gopal, a Grama Panchayat Secretary has stated that, at the request of the police, he has issued the property extract as per Ex.P-5 and according to Panchayat documents, the said property stands in the name of the deceased.
17. PW-9 – Krishnamurthy, Police Constable of the respondent-police station has stated about he apprehending the accused No.1 on 5.1.2011 at the instruction of his superior and producing the accused before the Investigating Officer.
18. PW-10 – Smt.Suguna, Woman Constable, has stated that she had carried seized articles in this case to Forensic Science Laboratory for its chemical examination as per the orders of the superiors.
19. PW-11 – Shankar, another Police Constable has stated about he carrying the complaint as per Ex.P- 1 and FIR at Ex.P-6 from his police station to the Court and submitting it there.
20. PW-12 – Lingaraju, Head Constable of the respondent-police station, has stated that as per the instructions of his superiors to trace the accused persons in this case, he traced accused No.2 on 5.1.2011 and produced him before his superiors along with his report. On the very same day, he was also deployed to watch the dead boy of the deceased at Kithanahalli. Accordingly, he kept a watch on the dead body and submitted the same to post mortem examination.
21. PW-13 – Dr.S.R.Chowdaiah, has stated that as a Senior Specialist in the General Hospital, Nelamangala, at the request of respondent-police, he has conducted the post mortem examination on the dead body of deceased Mahesh on 5.1.2011 in the mortuary of the hospital at Nelamangala. He has given the details of the injuries found on the dead body and also his observation made after dissection of the dead body. He has stated that by his examination of the dead body, he came to a conclusion that the cause for death of the deceased was due to shock and haemorrahage as a result of multiple grievous injuries sustained. He has also stated that he has issued a post mortem report as per Ex.P-7 in this regard.
The witness has further stated that the Investigating Officer had produced before him a thick sharp triangular shaped glass piece stained with blood, which he identified at MO-7. After verifying the said glass piece, he opined that injury Nos.1 and 2 mentioned in his post mortem report can happen with the sharp edge of the glass piece (MO-7) when pierced forcibly into the body.
The witness has further stated that on the basis of the entries made in the MLC Register maintained by his hospital, he has issued a wound certificate of Smt.Nagamma/accused No.1 as per Ex.P-12. On examination of accused No.1, he found an oblique incised wound over the base of the right thumb on the palmer surface extending outwards measuring 3 cms. x ¼ cms. He has opined that the said jury is simple in nature and stated that the same was possible by coming in contact with sharp edged glass piece.
22. PW-14 – Nagesh G.N., then Police Sub- Inspector of respondent-police station has stated about he receiving the complaint as per Ex.P-1 on 5.1.2011 from PW-1 and registering it in their station Crime No.4/2011 against the accused named therein for the offences punishable under Sections 143, 120-B, 302 read with Section 149 of IPC and submitting FIR as per Ex.P-6. He has also stated that he visited the spot in Kithanahalli village along with dog squad and finger print experts and taken photographs of the scene of occurrence, which photographs he has identified at Ex.P-
10. He has further stated that during his investigation, he also apprehended accused No.1 near Kadabagere gate and produced her before the Investigating Officer who was then investigating the case.
23. PW-15 – Honnaiah, is another witness who also claims that he knows the family of the accused and the deceased. Apart from stating that the accused were residing along with deceased in the house at Kithanahalli after the death of Rajanna, the husband of accused No.1, this witness also has stated that on the alleged night of incident when he was passing in front of the house of the accused persons while going to his garden land, he heard some noise (galata) from the said house. The deceased and the accused persons were shouting. He also heard screaming of the deceased. However, he did not interfere in it. The witness further stated that PWs.6, 7 and another person were also with him. He proceeded to his house without poking his nose. However, while going, he saw an autorickshaw coming from Bengaluru and stopping near the house of accused persons. In that autorickshaw, apart from the driver, one lady was sitting in the back seat. Again the same autorickshaw left the place towards Bengaluru taking the accused persons in it. The witness has stated that, it was on the next day morning while going to his garden land, he saw the dead body of Mahesh on the diwan of the said house where he was residing.
24. PW-16 – Yathiraj B.R., is the Investigating Officer in this case and he has spoken about the investigation said to have been conducted in this case by him.
25. From the evidence of prosecution witnesses, it is not in dispute that PWs.1 and 3 are parents of the deceased Mahesh. It is also not in dispute that the said Mahesh met an unnatural death on the early morning hours of 5.1.2011 before 3.00 a.m. in the house where he was residing at Kithanahalli.
26. The evidence of PWs.1, 3, 6, 7 and 15 go to show that in the said house where the dead body of the deceased Mahesh was found lying on diwan, apart from said Mahesh, the present appellant (accused No.1) was also residing. These witnesses have further gone to the extent of saying that male children of accused No.1 – Nagamma, were also residing in the same house though Vidya, the daughter of accused No.1, went to her marital home after her marriage with another person.
27. The evidence of PWs.1, 2, 3, 6, 7 and 15, so also, of PW-16 that the dead body of the deceased Mahesh was found on the diwan cot of the said house at Kithanahalli and he was found to have sustained a stab injury on his right abdomen and another injury on his right forearm and that his death was found to be an unnatural death occurred in the same place, has not been disputed from the accused side. However, the question is whether the said death of Mahesh was homicidal?
In that regard, PWs.1 and 3, who are the parents of the deceased, have stated that the death of Mahesh was caused by some other person. Thus, they have inferred that the said unnatural death was a murder. PW-6 has categorically stated that the accused have murdered the deceased because the accused was asking the appellant (accused No.1) to vacate the house. The inquest panchanama at Ex.P-2 also suspects the death as a murder. However, it is the medical evidence which is required to be applied to analyse the death of the deceased.
As already observed above, PW-13 is the doctor who has given his evidence about he conducting autopsy on the body of the deceased. According to him, when he examined the dead body of Mahesh, he noticed the following external injuries :
a. An incised wound obliquely measuring 3 x 2 Cms. into bone deep, posteriorly 5 Cms from the right elbow joint.
b. Stab wound on the right side of abdomen, 5 inches to the right of the umbilicus, obliquely measuring 7 x 5 cms which enters the abdomen crossing all the abdominal wall structures easily. No glass pieces were found at or around the passage of the wound.
c. A contusion measuring 4 x 3 Cms, 5 Cms above the right elbow posteriorly. (backside).
d. A contusion on the middle of sternum bone measuring 2 x 3 Cms.
The doctor has opined that all these injuries were ante-mortem in nature.
After dissection of the body, the doctor has noticed that in the abdomen, ascending colon in the middle third and the small intestine about 1 feet of the right lobe of the liver and right kidney were found lacerated and injured. He also noticed stomach containing rice and sambar about 400 ml. He further stated that he collected the clothes and viscera for the purpose of chemical examination and pending Chemical Examiner’s report, he issued the post mortem report as per Ex.P-7. After getting the report from the Forensic Science Laboratory as per Ex.P-8, he has given his opinion about the cause for death as per Ex.P-9, opining that the cause for death was due to shock and haemorrahage as a result of multiple grievous injuries sustained. The witness after going through the triangular shaped glass piece stained with blood at MO-7, which glass piece according to him was thick and sharp, has opined that injury Nos.1 and 2 mentioned in the post mortem report can happen with the sharp edge of the glass piece (MO-7) when pierced forcibly into the body.
28. Keeping the medical evidence of the doctor for the cause of the death on one hand, if the defence of the accused regarding the death of Mahesh is considered, it can be noticed that, in the form of suggestions made to the witnesses i.e., PWs.1, 2 and 5, in their cross-examination from the accused side, it was suggested that the deceased was addicted to liquor and that, at the time of his death, he was totally inebriated and due to the influence of liquor, he fell on the television glass and sustained injuries and succumbed to it. However, none of these witnesses have admitted those suggestions as true. On the contrary, as already observed above, PW-13 has stated after seeing the glass piece at MO-7, that the injury Nos.1 and 2 (the major injuries found on the deceased), can be caused with the said glass piece when pierced forcibly into the body. A forcible piercing of said glass piece has nowhere been explained in the defence taken by the accused as an accidental incident. It is not even demonstrated by them about the alleged fall of the deceased due to the alleged consumption of liquor and he falling with such a force such that the glass at MO-7 could be pierced into his abdomen.
On the other hand, the argument of learned State Public Prosecutor to the effect that neither the doctor who conducted the autopsy nor the Forensic Science Laboratory report have any where mentioned that the stomach had contained any alcohol or liquor, cannot be ignored. Had really the deceased been inebriated at the time of alleged incident, the doctor at the time of post mortem examination of the body, who could notice 400 ml. of contents in the stomach, which according to him were rice and sambar, could have necessarily sensed and mentioned about the foul smell or an alcoholic smell in the stomach, which he has not done. Further, no suggestions to the said witness that the contents of the stomach also had the alcoholic contents in it, were made from the accused side to him. Furthermore, the Forensic Science Laboratory report also no where mentions that the contents of the stomach examined by them had in it any alcoholic contents.
29. Added to the above, the argument of learned State Public Prosecutor that, as could be seen in the photographs at Ex.P-10, not even a single piece of broken glass is found fallen on the floor, but, all the broken glass pieces are on the Television stand only, as such, the contention that the deceased had himself fallen on the glass piece is unbelievable, also requires to be accepted. It is not the defence of the accused that one among the glass pieces found in front of the Television stand was protruding so that it could pierce into the abdomen of the deceased. On the contrary, it is their defence that under intoxication, the deceased himself fell (emphasis supplied) on the broken glass piece. Since not even a single glass piece which can pierce to the extent of the depth of the injury can be found fallen on the ground, as such also, the injury was an accidental injury is not acceptable.
30. Therefore, the contention of the accused that the death of Mahesh was a fall on the broken Television glass under the excess influence of the liquor cannot be accepted. On the other hand, the above analysis of the evidence of the witnesses, more importantly, of the medical evidence clearly go to show that the death of the deceased was homicidal.
31. After concluding that the death of Mahesh was homicidal, the question that remains for consideration is whether the prosecution has proved that the said death of Mahesh was committed by the present appellant/accused No.1 and that it was a murder.
As already observed above, it is not in dispute that deceased Mahesh was residing in the house where the alleged incident has taken place, wherein the family of the accused were also residing. The proposal of marriage of Ms.Vidya, the daughter of the appellant herein, with Mahesh, is also not denied, so also, said Vidya eloping with another person, having married him and deceased continuing to stay in the same house with the members of the family of the accused. Thus, as on the date, the residents of the house where the incident has taken place were the family of the accused and the deceased. According to the prosecution witnesses, when PW-1 and PW-3, joined by PW-5, went to the house and saw the dead body, the appellant and her other family members were still there. Thus, the undisputed fact remains that in the house where the incident has taken place, the deceased along with the family of the accused was residing. However, the question is whether on the night of the incident, apart from appellant/accused No.1, was there any other person?
32. The trial Court has observed that it was only accused No.1 who was there in that house on the previous night. To overcome the said finding of the trial Court, from the appellant side, no argument was addressed nor any materials have been produced. On the other hand, in the cross-examination of PW-1, a suggestion made from the accused side to the witness suggesting that at the time of death of Mahesh in the said house, neither accused No.2 nor accused No.3 or anybody else were there in that house, except accused No.1 i.e., the appellant can be seen. By making such a specific suggestion, the appellant has shown that it was she and she alone who was in that house along with deceased at the time of incident.
33. PWs.1, 3 and 5 have stated that, with respect to the possession of the house property, there was some difference of opinion or dispute between the deceased and the appellant/accused No.1. According to them, though they had put up the construction of the house, since the appellant was also staying there, she was offering to pay some money to the deceased, in turn, the deceased should vacate the house and make it over to the family of the accused. The same was not acceptable to the deceased and his parents. The said evidence that the accused No.1/appellant was not ready to vacate the house, on the other hand, a proposal was made from their side that deceased should vacate the house, has not been specifically denied in the cross- examination of any of these witnesses. The property tax extract issued by the Grama Panchayat Secretary at Ex.P-5, as observed above, shows that the said property was standing in the name of the deceased. Thus, it go to show that there was difference of opinion or dispute with respect to the possession of the house property and who should continue in the possession and its ownership.
34. Similarly, on the lines of the alleged dispute with respect to the possession and ownership of the property, the evidence of PWs.6 and 7 has also come up. Though the accused have in the cross-examination of both these witnesses attempted to show that they were inimical witnesses and were also accused in a complaint lodged from the accused side, but, by that itself, their evidence which deserves to be given in the case on hand, cannot be denied. Both PWs.6 and 7 have also stated about the dispute that was occurring between the accused and the deceased with respect to the possession and ownership of the said house. Apart from the same, both these witnesses have uniformly stated that, on the alleged night of the incident, while they were passing in front of the house of the accused on their way to the land, they heard some quarrelling and screaming noise from inside the house. No doubt, neither of them have stated that they saw the actual quarrelling of accused No.1 and the deceased in the house, however, by hearing the quarrel, they noticed that it was between the accused and the deceased in connection with who should continue to reside in the said house.
PW-7 has further stated that by peeping through the keyhole of the said house after the accused are said to have left the house in the night, he noticed the broken glass pieces, broken earthen pots and spilling of blood inside the house. The very same scene of place of the offence has been given even by PWs.1, 3 and 5 also. They too have in their evidence clearly and categorically stated that when they saw inside the house, apart from seeing the dead body with injuries on its abdomen and other parts, they also noticed the broken glass pieces and broken pots fallen on the earth, so also, scattering blood which had flown even outside the house also.
35. Thus, the evidence of PWs.1 and 3 when read in the light of evidence of PWs.6 and 7 and also the evidence of PW-15, go to show that before the deceased could die in the house, some altercations or disturbances might have taken place in the said house, where breaking of glass parts has taken place, which ultimately has ended in the death of deceased Mahesh.
36. Considering the fact that, as noticed above, it is the only accused No.1 who was there in that house and the death of Mahesh has taken place which is homicidal since he has sustained a deep stab injury on his right abdomen, which according to the doctor, is possible only with forceful piercing of an object like glass piece at MO-7, it has to be noticed that the explanation to be given for the said injury would be upon the accused No.1 who alone was in the house at that time. Admittedly, the appellant/accused No.1 has not given any explanation for the alleged injury and the death of the deceased, except taking a defence that deceased fell on the broken glass piece under intoxication and sustained injuries. However, as analysed above, the said contention was not acceptable. Therefore, only inference that can be drawn is that, because of the dispute which was existing between the appellant/accused No.1 and the deceased, the appellant/accused No.1 has inflicted injuries in the alteration on the deceased causing injuries upon him.
37. In the above connection, the recovery of articles said to have been made at the instance of the appellant/accused No.1 also cannot be ignored.
According to PW-4, it was in his presence and also in the presence of CW-9, the present appellant from the bathroom of the said house, produced the articles at MO-3 to MO-7. Among these articles, the banian said to have been worn by the deceased at the time of incident and which was blood stained was identified at MO-3 and the broken glass piece with blood stain is identified as MO-7. It is the very same glass piece which after its verification, the doctor i.e., PW-13 has opined that the fatal injury found on the deceased at Sl.Nos.1 and 2 in the post mortem report issued by him are possible to be caused with the said glass piece. Further, the Forensic Science Laboratory report at Ex.P-8 also mentions the presence of blood both on the banian and the glass piece. Undisputedly, the said glass piece at MO-7 was a thick triangular shaped glass piece of not less than a length of 15 cm.
38. Thus, the established facts that, at the time of the incident, it was the present appellant alone who was found in the company of the deceased and the recovery of the blood stained banian of the deceased at MO-3 and blood stained glass piece at MO-7 at the instance of the said appellant/accused No.1 and the evidence of PWs.6, 7 and 15 that, on that night, they heard the quarrelling noise in the house of the deceased and also the screaming noise of the deceased, leads to only one conclusion that the appellant in quarreling with the deceased in connection with who should vacate the house, has inflicted injuries upon the deceased, which has resulted in his death.
At this place, the argument of the learned counsel for the appellant that the voluntary statement said to have been made by the accused No.1/appellant has not been appreciated by the trial Court, is requires to be considered.
According to the learned counsel for the appellant, the accused No.1 who is shown to have given her voluntary statement before the Investigating Officer, has explained the details which led to the death of Mahesh in the house. Stating that the said explanation given by the accused ought to have been considered by the trial Court, learned counsel for the appellant relied upon a judgment of Hon’ble Apex Court in Kajal Sen and others –vs- State of Assam, reported in {(2002) 2 SCC 551}. At para-12 of the said Judgment, the Hon’ble Apex Court was pleased to observe as below :
“ The investigating officer recorded the statement of the accused deceased Nepal Deb who has stated that after some altercation with the deceased Piklu, who abused him by saying that he was son of bitch and who attacked him with “dao”, he stabbed Piklu with the knife which was in his hand and thereafter he fled away. This prosecution version nowhere involves rest of the accused in the crime. In our view, while appreciating the evidence it was the duty of the courts below to appreciate the same minutely, carefully and analyse the same.”
With great respect to the said judgment, we observe that, in the case before Their Lordship in Kajal Sen’s case (supra), the voluntary statement said to have been given by the accused was reproduced in the deposition of PW-12, the Investigating Officer, in its entirety and the Investigating Officer has given the full details of the voluntary statement said to have been given by the accused before him. As such, the contents of the said voluntary statement did not confine only to alleged voluntary statement of the accused, but, has become part of the substantive evidence of the Investigating Officer in the course of his evidence. Since the said Investigating Officer has given the full details of the alleged voluntary statement of the accused in its entirety, the Hon’ble Apex Court was pleased to observe that, in such a situation, the trial Court while appreciating the evidence, was to appreciate the entire evidence minutely, carefully and analyse the same.
39. In the case on hand, admittedly that portion of the alleged voluntary statement of the accused which is favourable to her has neither been stated by the Investigating Officer in his evidence nor was put to him in his cross-examination. As such, there is nothing to arrive at as to what the contents of the remaining portion of the voluntary statement of accused No.1, except the marked portion at Ex.P-13, wherein the accused No.1 is shown to have stated that she would lead, if accompanied, and produce the incriminating materials kept by her. Thus, the observation made in Kajal Sen’s case (supra) would not enure to the benefit of appellant/accused No.1.
40. The other argument forwarded by the learned counsel for the appellant is about the alleged non-putting the questions to accused No.1 in her statement recorded under Section 313 of Cr.P.C. about the contents of the voluntary statement made by her and recovery said to have been made at her instance.
A careful perusal of the statement recorded under Section 313 of Cr.P.C. in this case go to show that even though the trial Court has not put to accused No.1 in specific term as to what PW-13 has stated about the alleged recording of the statement of the accused No.1 marked at Ex.P-13, but, the related questions put to accused No.1 clearly go to show that the investigation conducted by the said witness, including collecting of incriminating materials, regarding recovery, has been put to the accused No.1. Furthermore, the evidence of PW-4 leading to the alleged recovery and the process of recovery conducted in the matter has been specifically and particularly put to accused No.1 and her response has been recorded. As such, the argument of learned counsel for the appellant that recording of statement under Section 313 of Cr.P.C. of accused No.1 is defective, is not acceptable.
41. In addition to the above, it is also to be noticed that in the alleged incident, the appellant/accused No.1 has also sustained injuries. PW-13, the doctor has stated that when he examined appellant/accused No.1, he noticed an oblique incise wound over the base of the right thumb on the palmer surface extending outwards and measuring 3 cms. x ¼ cms. He has issued a wound certificate in that regard as per Ex.P-12. A perusal of the said wound certificate go to show that even the appellant was also examined by the doctor on the very same day i.e., on 5.1.2011 and the age of the wound was found around 24 hours. This age of the injury corresponds to the time of the alleged incident of stabbing Mahesh on his abdomen and causing injuries to him. PW-13, the doctor, has also opined that the said injury found on the appellant/accused No.1 was simple in nature and was possible to be caused by coming in contact with the sharp edge of the glass piece. The position on the palm, on which the injury upon the appellant was found, corresponding to the position of a person holding a piece of glass to enable to attack with it. Nowhere, the accused No.1 has given any explanation for the injury caused to her. This further strengthens the case of the prosecution to arrive at a conclusion that it is the accused No.1/appellant alone who has inflicted fatal injuries upon the deceased causing his death.
42. From the above, it is clear that the death of Mahesh which occurred on the night of 4.1.2011 in his house at Kithanahalli, is a murder and the prosecution has been able to prove beyond reasonable doubt that the said murder has been committed by none else than the present appellant/accused No.1 and appellant alone. By analysing the materials placed before it in its proper perspective, since the trial Court has arrived at a correct finding, we do not find any reason to interfere in it. Since the trial Court after considering the circumstances of the case and criminality of the guilt, ordered a proportionate sentence, we do not find any reason in modifying the sentence ordered against the present appellant/accused No.1.
Accordingly, we proceed to pass the following order:
ORDER The Appeal stands dismissed as devoid of merits. The judgment of conviction dated 31.12.2013 and order on sentence dated 2.1.2014, passed by the learned Principal Sessions Judge, Bengaluru Rural District, Bengaluru, in S.C.No.214/2011, is confirmed.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the trial Court immediately.
An entire copy of this judgment also be delivered to the appellant/accused No.1, immediately free of cost.
Sd/- JUDGE Sd/- JUDGE bk/