IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO AND THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD CRIMINAL APPEAL No.657/2014 BETWEEN:
NEELEGOWDA S/O NAGARAJU, AGED 35 YEARS, R/AT HONNAPURA VILLAGE, PERIYAPATNA TALUK ..APPELLANT (BY SRI P D SUBRAMANYA, ADVOCATE) AND:
STATE BY BETTADAPURA POLICE STATION PERIYAPATNA TALUK, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR .RESPONDENT (BY SRI I.S.PRAMOD CHANDRA, SPP-II) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED:03/05.01.2013 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT, HUNSUR IN S.C.NO.135/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, N.K.SUDHINDRARAO, J., DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the Judgment convicting the accused and sentencing him to undergo imprisonment for life for the offence punishable under Section 302 of IPC in S.C.No.135/2012 dated 03/05.01.2013.
2. The substance of the case reflected from the records is, the accused-Neelegowda and deceased Manjula are spouses. It was a love marriage between them. Marriage is stated to have performed 15 years prior to the incident. It is stated that husband- Neelegowda was suspecting marital loyalty and character of his wife –Manjula and on 15.12.2011 at 10 P.M. he quarreled with her and told her he would kill her with an iron spade. Again on 16.12.2011 at about 3.00 A.M. Neelegoweda-accused picked up quarrel with his wife-Manjula and suspected her character and fidelity, assaulted and hit her with iron pick axe on the left portion of her head and other parts of the body due to which she sustained serious injuries and succumbed to them on the spot.
3. After the presentation of case before the trial Judge, accused was heard and charge was framed for the offence punishable under Section 302 of IPC and accused denied and claimed to be acquitted.
4. Learned District Judge was accommodated with oral evidence of PW-1 to 13 including the daughter of Manjula and father of Manjula-PW-1-Shivanna.
Documentary evidence Exhibits P-1 to 19(a) and material objects M.O.1 to 12.
5. On considering the materials in the form of oral and documentary evidence submitted from the side of the complainant, prosecution and accused and hearing both sides, learned trial Judge held accused guilty of having committed the offence punishable under Section 302 of IPC, hence convicted for the said offence and after hearing him, sentenced the accused to undergo imprisonment for life.
6. As the offence charged against accused is one punishable under Section 302 (Murder) it is incumbent on the part of prosecution to establish that the death of Manjula at Honnapura in her house on 16.12.2011 was a homicide and not a natural one.
7. In this connection the complaint lodged by Shivanna, father of deceased-Manjula, that the victim had sustained bleeding injuries on head and other parts of the body and he was told by his grand- daughter –Usha that accused hit and murdered Manjula, Ex.P-4 the inquest report/mahazar conducted on 16.12.2011 in Crime No.141/2011 for the offence punishable under Section 302 of IPC, in the house of accused mentions pastures and position of the dead body and blood that was lying on the floor point towards the conclusion that it was a homicidal death. The next document is Ex.P.12 –Post Mortem Report which is conducted on 16.12.2011 at 1.30 P.M. on the dead body and it reveals the following injuries:
1. Lacerated wound in left earlobe 1x1 cms., 2. Lacerated wound in the left side of the forehead 2x0.5 cms.
3. Lacerated wounds two wounds just above the left ear, in the left mastid region, measuring 8cmx1cmx1cm and 6cmx1cm x1cm.
4. Lacerated wound in the left occipital region 3x1 cm x1cm.
5. Contusion of the right eye.
8. The opinion as to cause for the death is stated to be sub-dural Haematoma one either side of cerebral surface due to head injury and evidence of the Doctor as PW-11 invariably suggest that the death of Manjula on 16.12.2011 was a homicidal and not natural.
9. Further, it is the responsibility of the prosecution to establish that homicide of Manjula was committed by the accused by inflicting serious injuries from the weapon iron pick axe and was conscious that his act will be taking her life. In this connection, the oral evidence available are PWs-1 to 13 out of which PW-1 is the complainant-Shivanna, father of deceased- Manjula, PW-2-Usha-daughter of deceased Manjula, PW-3 Ashoka -neighbour, PW-4-H.R.Basavaraju- witness for inquest report, PW-5-Malamma-mother of deceased Manjula, PW-6 –Thimmegowda –neighbour, PW-7 –Srinivasa, PW-8 – Annappa – Panch witness, PW-9 –Khaleem Ahammad – AEE, CESCOM, Periyapatna, PW-10- Prasanna – P.C., PW-11- Dr.Shridhar – who conducted post mortem. PW-12- Jayamma, PW-13 – P.V.Venkatesh – CPI, Periyapatna.
10. The learned counsel for appellant-accused submits that prosecution failed to establish the case against the appellant beyond reasonable doubt. Further the complainant does not have the knowledge of the incident directly.
11. Further the version of PW-2 Usha daughter of the deceased and the accused who is stated as the eye witness is exaggerated. Her version is falsified and looses the reliability when compared to the version of other witnesses.
12. He would further submit that no explanation or atleast reasons are forthcoming for not examining Uday who is the younger brother of PW-2 regard being had to the fact tat he is also a child witness like PW-2 Usha.
13. Learned SPP-II would submit that the prosecution has proved the case against accused beyond reasonable doubt and no explanation is given by the accused regarding the house death of his wife. He would further submit that attendant circumstances suggest that there was no necessity for further corroboration in the light of the evidence of PW-1 and PW-2.
14. Insofar as evidence of PW-1 –Shivanna – complainant is concerned is that his daughter – Manjula was carrying on flower business at Somwarpet. She married Neelegowda-accused about 15 years earlier to the date of he giving his evidence. Accused-Neelegowda was not doing any avocation or work and he was suffering from Tuberculosis. Thus, Manjula was compelled to work and maintain the family. About 8 to 9 months earlier to his adducing oral evidence, this witness had gone to the house of his daughter it was 8 to 8.30 P.M. Both PW-1 and his daughter were residing at the same village Honnapura. The accused Neelegowda used to pick up quarrel with his wife and she was sent by the accused to the house of the witness. He further tells about location of the house where the accused and Manjula were residing and about the house of Ashoka- neighbour which is next to the house of accused and deceased. On that day he was informed by Ashoka that accused had assaulted and hit Manjula and pushed her out of the house, and he went to the house of the accused and found she was dead and dead body was bearing the injuries inflicted by pick axe on head and other parts of the body. By that time children Usha and Uday were screaming, the accused had run away from the scene. Usha and Uday informed that their father hit Manjula with pick axe and by the time he went home she was already dead, pick axe was lying at the spot. Meanwhile jurisdictional Bettadapura Police came to the spot after getting the information. He lodged complaint which is marked at Exhibit P-1. He tells that the terms of the complaint were dictated by him. The rest is he identifies the other material objects, Panchanama-Ex.P.2, blood stained soil, ordinary soil and mat. He is also cross examined and he denies the suggestion made by the learned counsel for accused.
15. PW-2 –Usha is the daughter of accused and deceased-Manjula. Witness was aged 13 years on 03.09.2012 when she adduced evidence. She tells that she is the daughter and brother-Uday is son of accused and deceased. Her brother Uday was studying in sixth standard. Her father was not coming outside as he was suffering from Tuberculosis because of which her mother Manjula was maintaining the family. About 8 months prior to her date of evidence when they were sleeping the accused hit Manjula with pick axe and murdered her and it was 2 a.m at that time. She further tells that her father was abusing her mother and doubting her fidelity. Earlier to eliminating her mother, accused was telling that he was going to butcher her. On the date of incident when she was sleeping she heard screaming voice of her mother and she got up by which time accused hit her mother and murdered Manjula and also pierced her hand with pick axe and he hit Manjula on head and other parts of her body and snatched her Mangalsutram and ran away and on hearing her screaming Thimmegowda, Jayamma and Ashoka came. Afterwards Ashoka went and informed the complainant –Shivanna who is the father of Manjula. One of the person gathered there telephone for ambulance. She has been cross examined by learned counsel for accused.
16. PW-3 –Ashoka is cited as material witness and as per the evidence of PW-2 he came after hearing screaming voice of the children and first hand knowledge of the scene just after the incident. But this witness in his evidence dated 03.09.2012 gives a go by to the prosecution case and declared hostile and was permitted to be cross examined. His version does not bear incriminating version or circumstance against the accused. According to him he went to the spot on hearing the voice of screaming. He does not know whether accused was suffering from Tuberculosis. Because of the gathering and galata in the process he went and told the complainant and further version regarding screaming of PW-2 –Usha and then informing complainant and he saw the scene of incident after the incident.
17. PW-4 – H.R.Basavaraju – he is cited as circumstantial witness and also witness to inquest mahazar Ex.P-4, under his signature Ex.P-4(a). He was declared hostile and permitted to be cross examined. He denies the suggestion passed on by the learned Public Prosecutor.
18. PW-5-Malamma is the mother of deceased- Manjula. Her evidence is after hearing the news from Ashoka, she visited the spot and found that the news informed by Ashoka was correct. She also states about the version of PW-2-Usha regarding injury inflicted by accused on her hand.
19. PW-6-Thimmegowda @ Thimmegowdanna is the witness who according to PW-2 came on hearing screaming of the children of Neelegowda-accused and he said to be in know of the scene consisting of dead body with bleeding injuries on Manjula and children were in a shocked situation over the incident. But in his oral evidence he gives a go by to the version of the prosecution and he was declared hostile.
20. PW-7-Srinivasa is a inquest mahazar witness.
His evidence is of no avail to the prosecution. PW-8- Annappa – Panch witness. PW-9 is Khaleem Ahammad, Assistant Executive Engineer, CESCOM, Periyapatna has deposed regarding the power supply through MUSS to Honnapura village on the date of incident. PW-10-Prasanna is police constable, who accompanied the CPI, Periyapatna to Honnapura village in respect of conducting the inquest over the dead body of deceased Manjula. PW-11 is Dr.Shirdhar, who conducted autopsy over the dead body of the deceased Manjula. He has stated in his examination regarding the cause of death. PW-12 – Smt. Jayamma in her examination has stated that she resides in the same line of the house of the accused. She was cited as witness for having seen the incident immediately after waking up on hearing the sound and saw the dead body with bleeding injuries and the children of the deceased Manjula were in shocked situation. However, her evidence is no avail to the prosecution. She turns hostile. She denied the suggestions made by the learned Public Prosecutor. PW-13 - P.V. Venkatesh, CPI, Periyapatna is the Investigating Officer. His evidence is regarding formalities of investigation.
21. Insofar as complaint – Ex.P.1, it is lodged by PW.1 – Shivanna, who is the father of the deceased Manjula. Incidentally, he is not an eyewitness to the incident, on the other hand he came to know about the news that was communicated to him by PW-3 - Ashoka who in his evidence has stated that he is not aware of the incident. It is necessary to mention that the daughter of deceased Manjula who is aged about 13 years on the date of evidence and may be 12 years as on the date of the incident. It is not explained why Usha did not file the complaint, on the other hand, it is her maternal grandfather who lodged the complaint. The entire evidence on record and the admitted version by the complainant through complaint that on the fateful night when PW-2 Usha and her brother were at home rather sleeping and Usha was with her mother and her brother was sleeping by the side of the accused and her brother Uday was studying in 6th standard at that time, which suggests that he was aged minimum 11 years as on the date of the incident.
22. It is necessary to observe that according to the evidence of PW-2 -Usha, her brother Uday was with her and was an eyewitness to the incident, who were shocked to see the barbaric act of her mother being murdered by the accused. It is necessary to place on record that he has not been examined. Thus, the prosecution relies that Uday was an eye witness and his evidence is material. He was not examined by the prosecution. Further, the investigating officer or the complainant has not whispered the reason for not examining Uday. In this connection, there should have been definitely explanation in the form of documents or during the oral evidence of the Investigating officer regarding the reason why Uday was not tendered in evidence. But it appears to be omnibus version and viewed from all angle, it requires corroboration which invariably suggests should have examined her brother Uday and for the reasons best known to the prosecution, he is not examined. The star witness for prosecution is PW-2 - Usha, daughter of the accused and the deceased. Her direct version is that she and her brother screamed then Ashok, Thimanna and Jayanna came. Her tone and tenor in presenting the facts in her knowledge is vague and does not inspire confidence. However, there is no witness by name Jayanna, but one Jayamma has been examined as PW-12 who came to know about the incident on hearing the screaming of Usha. But the said witness Jayamma has turned hostile to the prosecution case. She does not whisper the version incriminating against the accused. The witness namely Thimmanna @ Thimmegowda does not speak against the accused and turns hostile. He denies the suggestion made during the cross examination by the prosecution. Insofar as other witness Sri H.R.Basavaraju, who has been examined as PW-4 tells about the status of the accused, deceased and their children and does not speak against the accused. PW-5-Malamma, mother of the victim is not an eyewitness. She came to know of the incident on the basis of the information provided by one Ashoka. She does not speak about the direct involvement of the accused. However, Ashoka, who is examined as PW-3 does not reciprocate, but denies the suggestion during the cross examination. However, he turned hostile regarding passing on information to the complainant and the said witnesses. The weapon M.O.1 is stated to have been seized during the spot mahazar Ex.P-2. PW-2 specifically stated that accused hit Manjula with pickasi – M.O.1 and also caused injury to her hand. This incident was also brought to the notice of Malamma-PW-5. But when PW-2 tendered her oral evidence, nothing prevented her to show mark of injury said to have been sustained by her at the time of incident. In the overall circumstances and facts of the case, it is not the minimum or several number of witnesses that is required to establish a case for the prosecution. Criminal jurisprudence depends upon appreciation of the evidence and reliability of that evidence and documents which inspire the confidence of the Court. The testimony of PW-2 is an omnibus approach and tutored. The independent witnesses have not supported the case of the prosecution.
23. In this connection, the witnesses who have spoken about the incident are grandmother-PW-5, PW-1 and PW-2-daughter of the accused and the deceased. But insofar as PW-1, grandfather Shivanna is concerned, he was not present at the time of incident has no direct knowledge of the incident of attack and murder of the deceased. He states what Usha told to him. In the circumstances, the evidence of Usha invariably requires corroboration that is absent and insofar as other witnesses are concerned, they do not endorse or corroborate the version of the complainant. As already indicated above by us the evidence of Usha runs in omnibus form she also does not speak in a reliable manner. Doubt further swells over her as one of the answer that she was living with her grandfather-complainant and on the date of incident she came along with him. In the circumstances, she was within the access to PW.1- complainant Shivanna. Besides that Uday -her brother was not examined. Insofar as nature of death is concerned, it occurred in the house of the deceased and he was expected to tell about what he knows in the light of Section 106 of the Evidence Act, which is as under:
“Section 106: Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him”.
24. Sri P.S. Subramanya, learned counsel for the appellant would submit that atta was about to fall due to leakage of water on the previous day and it is at the worst an accident and the accused is no way concerned to it. The prosecution has failed to establish the guilt of the accused for the offence punishable under Section 302 of IPC or any other offence by the accused. But the trial Judge erred in finding the accused guilty. It has failed to appreciate the evidentiary value of the circumstances against the version of the prosecution. It further erred in noticing that evidence of PW-2 Usha does not inspire confidence. But no material witness have spoken to find the accused guilty. The findings of the learned trial Judge does not bear proper inferences and appreciation of evidence.
25. The submissions of the learned counsel for accused do have legal efficacy and force and deserve to be considered. However, the claim of the prosecution is far from reality and fails. The prosecution has failed to prove the commission of the offence under Section 302 IPC or any other offence.
Thus, the judgment dated 03/5.01.2013 convicting the accused in S.C.No.135/2012 and sentencing him to undergo life imprisonment is liable to be set aside and accordingly set aside.
In the result, the appeal filed by the appellant/accused is allowed.
The judgment convicting the accused for the offence punishable under section 302 of IPC thereby sentencing him to undergo imprisonment for life, passed by the Fast Track Court, Hunsur, Mysuru District in S.C. No.135 of 2012 on 03.01.2013, is hereby set aside.
The accused – appellant is set at liberty forthwith, if he is not required in any other case.
Send the copy of this judgment to the trial Court.
Registry is directed to forward copy of this order to the concerned Superintendent of the Jail where the appellant is lodged at present.
Sd/- JUDGE Sd/- JUDGE SBN/SA