IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF AUGUST 2019 PRESENT THE HON’BLE MR.JUSTICE B.A.PATIL AND THE HON’BLE MR.JUSTICE S.G.PANDIT CRIMINAL APPEAL NO.1328/2016 BETWEEN:
SRI RAMACHANDRAPPA S/O PUTTARAMAPPA AGED ABOUT 52 YEARS LABOURER R/O SIDDAPURA KASABA HOBLI MADHUGIRI TALUK-572132. …APPELLANT (BY SRI.ARUNA SHYAM M., ADV.) AND:
THE STATE OF KARNATAKA THROUGH MADHUGIRI POLICE STATION MADHUGIRI, TUMKUR DISTRICT REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDING HIGH COURT OF KARNATAKA BANGALORE-560 001. …RESPONDENT (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRL.APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C WITH A PRAYER TO SET ASIDE THE JUDGMENT AND ORDER DATED 01.02.2016 PASSED BY IV ADDL.DIST. AND S.J., MADHUGIRI IN S.C.NO.5009/2015 –CONVICTING THE APPELLANT /ACCUSED FOR OFFENCE P/U/S 302 OF IPC AND ETC.
THIS CRL.APPEAL COMING ON FOR HEARING THIS DAY, B.A. PATIL J., DELIVERED THE FOLLOWING: -
JUDGMENT The present appeal has been preferred by the appellant/accused challenging the legality and correctness of the judgment and order of conviction and sentence dated 01.02.2016 passed by the IV Additional District and Sessions Judge, at Madhugiri in S.C.No.5009/2015.
2. We have heard the learned counsel for the appellant and the learned Additional State Public Prosecutor on behalf of the respondent – State.
3. The case of the prosecution is that the accused and deceased were husband and wife. The accused was not looking after the deceased well and for the maintenance of the family, the deceased used to do coolie work. The accused was addicted to bad vices and used to pick up quarrel and used to assault the deceased demanding money from her, for his bad habits. In that light, on 11.11.2014 at about 8 p.m. the accused asked Rs.100/- from his wife Thungotamma for consumption of alcohol and as she refused to give the money, the deceased picked up quarrel with her and told her that he would put an end to her life and at about 2.30 a.m. on 12.11.2014 when the deceased questioned him as to ‘How he asked her money for consuming alcohol, when he does not do coolie work and does not get groceries and other articles to the house?’ the accused shouted that instead of giving money, she is advising him and by saying so, he told her that he would end her life and with that intention he assaulted the deceased near forehead with jaali club and also assaulted her near right side of chin, shoulders, near neck, stomach, hands and thighs and then kicked her all over the body and caused her death. On the basis of Ex.P.1 - the complaint, the case was registered in Crime No.130/2014. Thereafter, after investigation the charge-sheet was filed against the accused. The learned Magistrate took the cognizance and after following the formalities, the accused was committed to the Sessions Court. The Sessions Court took the cognizance and after hearing the learned public prosecutor and learned counsel for the accused, charge was framed. Accused denied the charge and as such the trial was fixed. In order to prove its case, the prosecution in all examined PWs.1 to 11 and got marked the documents Exs.P1 to P.18 and 8 material objects. After closure of the prosecution evidence, the accused was examined by putting incriminating material as against him. Accused has not lead any evidence on his behalf and not marked any documents. After hearing the learned counsel for the parties, the Court below has passed the impugned judgment and order of conviction and sentence. Assailing the same, the appellant/accused is before this Court in this appeal.
4. It is the submission of the learned counsel for the appellant that there are no eye-witnesses to the alleged incident. The entire case rests on circumstantial evidence. He further submitted that in order to bring home to guilt of the accused, all the circumstances together should point out the guilt of the accused. But in the facts and circumstances of the case, it will not point out the guilt of the accused and there are contradictions and omissions in the evidence produced by the prosecution to come to the conclusion that the accused has committed alleged offence. It is his further submission that PWs.2 and 7 are the son and daughter of the deceased and they have only reported the death of the deceased in the morning to PW.1 and thereafter he has filed the complaint. It is his further submission that the prosecution has to prove the case beyond all reasonable doubt, but there is no co-gent and acceptable evidence to come to the conclusion that it is the accused who committed the alleged offence. He further submitted that recovery of the material object is not proved in accordance with law and no witnesses have supported the case of the prosecution to substantiate the said act. It is his further submission that the trial Court based only on presumption and assumption has convicted the accused without there being any basis. Further submission of the learned counsel for the appellant/accused is that the alleged incident has taken place in a spur of moment, when the deceased and accused were quarrelling for the purpose of money, the accused had no intention or motive to commit any such murder of the deceased and as such the accused if at all is convicted, he is liable for punishment not under Section 302 of IPC, but under Section 304 Part II of IPC. On these grounds he prayed to allow the appeal and set aside the impugned judgment and order of conviction and sentence.
5. Per contra, learned Additional State Public Prosecutor vehemently argued and submitted that the evidence of PW.1 clearly goes to show that the accused by consuming alcohol used to quarrel with the deceased. The accused was not doing any work and even on 11.11.2014 at about 8.00 p.m. there was quarrel for money to consume alcohol and the same has also been witnessed by PWs.2 and 7. PW.7 - Lakshmi in her evidence has categorically deposed that accused assaulted the deceased with Jaali club. It is his further submission that the accused and the deceased were quarreling for money and deceased refused to give the money and the accused by uttering the words ‘I will take away your life’ has assaulted her with Jaali club and caused murder of the deceased. Even the post mortem report, which is produced at Ex.P.10 goes to show that the deceased died due to shock and head injury. That material itself clearly goes to show that it is the accused, who has assaulted the deceased. It is his further submission that defence taken by the accused is that she has fallen into a drain and sustained injuries. But even when the said fact has been taken into consideration, the same has not been substantiated or proved by the accused. The trial Court after considering the material on record, has rightly convicted the accused. There are no good grounds to interfere with the order of the trial Court and the said order needs to be confirmed. It is his further submission that the alleged incident has neither taken place in a spur of a moment nor it is the defence of the accused. Under such circumstances, the accused be convicted for the offence punishable under Section 302 of IPC and prayed to dismiss the appeal.
6. Heard the submissions of the learned counsel appearing for the parties and perused the records.
7. There are no eye witnesses to the alleged incident and entire case rests on the circumstantial evidence. It is well considered proposition of law that in order to bring home the guilt of the accused, chain of circumstances will have to be linked into with one another and if all the chain of events and important links have been established by the prosecution, it is said to have been proved. This proposition of law has been laid down by the Hon’ble Apex Court in the case of SHEIK ABDUL AND ANOTHER Vs. STATE OF M.P.
reported in AIR 1998 SC 942. The law laid down by the Hon’ble Apex Court is that prosecution has to establish that the circumstances proved lead to one and only conclusion towards the guilt of the accused. This proposition of law has been laid down by the Hon’ble Apex Court in the case of RUKIA BEGUM Vs STATE OF KARNATAKA reported in AIR 2011 SC 1585. Keeping in view the above said proposition of law and considering the evidence and submissions of the learned counsel appearing for the parties, let us consider the grounds urged in order to prove the case of the prosecution, it has got examined 11 witnesses, and got marked the documents Exs.P1 to P18. PW.1 - Kotappa is the father of the deceased, he has deposed in his evidence since the day accused got married the deceased, her life had become miserable, because accused used to quarrel with her daily by consuming alcohol and he also used to assault with club on her head and other parts of the body and he has given the complaint as per Ex.P.1. During the course of examination-in-chief, he has not supported the case of the prosecution fully and he has been treated partly as hostile and during the course of cross-examination by the learned Public Prosecutor, he has admitted the suggestion that on 12.11.2014 at about 2.30 a.m. there was galata in the house and when he went and saw, the deceased had fallen on the ground and she was dead and at that time the accused was moving around by holding a club and when he questioned the accused, he replied that ‘he assaulted her and killed her’ and thereafter by throwing the club, he went away from that place. During the course of cross-examination nothing has been elicited from the mouth of this witness, so as to discard his evidence. PW.2 – Chidananda, who is the son of the deceased has also reiterated the evidence of PW.1 regarding the accused consuming alcohol and quarelling with the deceased. He has further deposed that himself and his sister - Lakshmi slept in the house of their uncle and at that time, the accused had again quarreled and had murdered his mother and in the morning the accused (his father) came and woke up and informed about the death of the deceased (Mother). During the course of cross-examination by Public Prosecutor, he admitted the suggestion about demanding Rs.100 for drinking alcohol quarreling with her and assaulted, they went and advised, accused told he will finish his mother, they consoled and after dinner slept. On 12.11.2014 at 2.30 a.m. they heard galata when himself and his sister went and saw they heard quarrel, assault, they tried to rescue. This has been admitted. Nothing has been elicited so as to discard the evidence of this witness. He has deposed about identifying the Material Objects 1 to 4. PW.3 – Ramesha is the witness to Ex.P3, the seizure mahazar panchanama. He has not supported the case of the prosecution and he has been treated as hostile. PW.4 is also a witness to the seizure mahazar panchanama - Ex.P.3 and he has also not supported the case of the prosecution. PW.5 – Nagaraju is another witness and stated that the shirt of the accused was seized and marked as MO.6. He has also not supported the case of the prosecution. He has admitted that MO.6 is the shirt of the accused. PW.6 – Narasimharaju is also another witness to seizure mahazar panchanama – Ex.P.6. He has also not supported the case of the prosecution. PW.7 - Lakshmi is the daughter of the deceased, she has also spoken with regard to the galata, that took place at 8.00 p.m. for demand of Rs.100/- for the purpose of consuming alcohol and when the deceased refused to give money, the accused assaulted and caused the death of the deceased. PW.8 - Puttarangamma is the mother of the deceased, she has not supported the case of the prosecution and she has been treated as hostile. PW.9 is the Doctor, who conducted autopsy on the body of the deceased and issued the post mortem report as per Ex.P.10. During the course of cross-examination, to the suggestion that injuries mentioned in the post mortem report may be caused if a person falls in the drain, the said suggestion has been denied. PW.10 - the CPI, who conducted investigation and filed the charge-sheet. PW.11 is the PSI who received the complaint as per Ex.P1 and registered the case and issued the FIR. On going through the evidence and material on record that the death of the deceased is a homicidal death has not been seriously disputed. Even the evidence of PW.9 - the Doctor, who conducted autopsy over the body of the deceased has deposed that he found six injuries over the body of the deceased and he has opined that the death is as a result of shock due to head injury and injury No.1 indicates that she was having injury on her fore head, around the neck, right elbow, left shoulder and both the eyes caused by assault with club.
8. If we go through the evidence of PWs.1, 2 and 7 it is clear that they have also deposed that immediately when they went there, they have noticed the above said injuries. On going through the evidence which was produced, it clearly goes to show that the deceased died a homicidal death. The prosecution in order to bring home the guilt of the accused has relied upon the motive as could be seen from the complaint and the evidence of PWs.1, 2 and 7, they have categorically deposed before the Court that the accused used to ill treat and harass the deceased and also used to consume alcohol and he was not working and bringing any groceries and on the date of the alleged incident he demanded Rs.100/- from the deceased for consumption of alcohol and as she refused, there was a quarrel and at that time, accused assaulted on her cheeks, neck and other parts of the body. All these material has not been shaken during the course of cross-examination. In that light, prosecution has also established the fact that the accused demanded money for the purpose of consuming alcohol. The prosecution has also relied upon the evidence of PW.1 stating immediately after the alleged incident the accused was moving around in the said place by holding club and when he was questioned, he has replied that ‘He has assaulted and killed his wife’ and thereafter, after throwing the club he went away from that place, the said act of the accused amounts to nothing but extra judicial confession before PW.1. PW.1 is none other than the father of the deceased and immediately after the incident, he has witnessed the incident that the accused has committed the murder of the deceased by causing fatal injuries. Then under such circumstances, the prosecution has clearly established the fact of confession and conduct of accused. During the course of cross-examination of PW.1, even though he has admitted the case of prosecution, the said aspect has not been challenged during the course of cross-examination by the accused. In that light, the confession has been proved.
9. We are conscious of the fact that the extra judicial confession is construed to be a very weak type of evidence, that cannot be solely relied upon by the Court. However, it is clear that as other circumstances being proved by the prosecution the accused used to quarrel with the deceased for money by consuming alcohol and he has quarreled on 11.11.2014 at 8.00 p.m. asking Rs.100/- from the deceased and the said incident is witnessed by PW.2 and PW.7. It is not the case of the accused that immediately after the quarrel he has left the place, he was staying in the house and was found by holding a club and has made a confession, thus the said confession will substantiate the case of the prosecution. Even though the other circumstances, have not been clearly established, the major portion of the prosecution case and important links have been established by the prosecution as held in the decision of SHEIK ABDUL AND ANOTHER cited supra the Hon’ble Supreme Court has held that if the important links have been established by the prosecution and the circumstances relied upon is said to have been proved. Then the accused can be convicted. In the instant case, looking from any angle it is evident that the prosecution has proved beyond all reasonable doubt that the accused has committed the murder of deceased. Though it is suggested during the course of cross- examination that the deceased has suffered the injuries as mentioned in post mortem report, because of fall in the drain, when the said suggestion has been made to the Doctor PW.9, the said suggestion has been denied and in the post mortem report itself it has been categorically stated that the said injuries are due to the assault by the accused. No other possible or doubt arises in the case except that of the accused. The prosecution has proved clearly that the jaali club said to have been used by the accused has been recovered from the place of the incident. Though the learned counsel for the accused alternatively contended that the appellant/accused was not having any pre-meditation or intention to kill the deceased, as the alleged incident has taken place in a spur of moment, the provisions of Section 302 of IPC are not attracted, at the most the provisions of Section 304 Part II of IPC would be attracted. On a perusal of the evidence, no where it is brought on record that the homicidal death has occurred in a spur of moment, it clearly goes to show that the death occurred due to a quarrel between the accused and deceased. The alleged incident started on 11.11.2014 at 8.00 p.m. and incident took place on 12.11.2014 at 2.00 a.m. In the absence of any material to substantiate the contention of the learned counsel for the accused that the offence committed by the accused falls under Section 304 of IPC, the same is not acceptable in law as the same is not having any force, it is rejected.
10. Taking into consideration the above facts and circumstances of the case, we are of the considered opinion, that the appellant has not made out any good grounds so as to interfere with the judgment and order of conviction and sentence of the trial Court. Judgment of the trial Court deserves to be confirmed.
11. We have gone through the judgment of the trial Court carefully and cautiously. The trial Court after considering the material on record has passed the reasoned order, there is no illegality or erroneousness in passing the impugned order. Hence, the impugned judgment and order of conviction and sentence is confirmed. Accordingly, the appeal being devoid of merits is dismissed.
Sd/- JUDGE Sd/- JUDGE NG* CT:bms