IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 16TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MRS.JUSTICE K S MUDAGAL AND THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL APPEAL No.78 OF 2016 BETWEEN Sri. Ravi Kumar, s/o. Premakumar, Aged about 38 years Resident of Ganigara Road, Kunigal Town & Taluk-572130, Tumkur District, Karnataka State. ... Appellant (By Sri. D. Nagaraja Reddy, Advocate) And State of Karnataka by Kunigal Police Station, Kunigal Town & Taluk, Tumkur District-572130, Rep. by Public Prosecutor. ... Respondent (By Sri. Vijayakumar Majage, Addl. SPP) This Crl.A. filed under Section 374(2) Cr.P.C praying to set aside the judgment and order dated 30.08.2013 passed by the I Addl. Dist. and S.J., Tumakuru in S.C.No.178/2012 - convicting the appellant/accused for the offence p/u/s 302 and 201 of IPC.
This Crl.A. coming on for hearing this day, K.S. MUDAGAL J, delivered the following:-
JUDGMENT Challenging the judgment and order of conviction and sentence dated 30.08.2013 passed by the I Addl. Dist. and Sessions Judge, Tumakuru in S.C.No.178/2012, the accused is before this Court in this appeal.
2. By the impugned Judgment and Order, the Trial Court has convicted the appellant for the offences punishable under Sections 302 and 201 of IPC and sentenced him to life imprisonment and fine of Rs.10,000/- for the offence punishable under Section 302 of IPC and rigorous imprisonment for one year and fine of Rs.5,000/- for the offence punishable under Section 201 IPC.
3. Kunigal police charge sheeted the appellant in Crime No.39/2012 of their Police Station for the aforesaid offences on the basis of the complaint of PW1 as per Ex.P1.
4. The prosecution case in brief is as follows:
The accused and victim Sujatha were married about five years prior to the incident. Due to disturbance in the marriage, about three years prior to the incident the accused and Sujatha were living separately. PW2, the sister of the accused conciliated and reunited the couple and set up a house for them taking the house of PW1 on rent. Since about less than one month prior to the incident accused and Sujatha started living in the said house. The accused was suspecting fidelity of Sujatha and on the previous day of the incident, quarrel took place between them. Due to that during the intervening night of 14/15.2.2012, in the said house, the accused assaulted and strangulated Sujatha with rope – MO2 and committed her murder. Accused stuffed dead body in MO1 – corrugated TV box, tied with a rope and locking the house escaped from the scene of offence.
On 15.2.2012 in the morning, CW5 – Somashekar, brother of the accused came to the scene of offence. He called PW1 and in her presence, broke open the lock and they found that the dead body was kept in a corrugated TV box.
5. PW-1 filed complaint with Kunigal Police, PW-
10 registered FIR as per Ex.P-16 and handed over the investigation to PW-11. During the course of investigation, the Investigating Officer arrested the accused on 14.03.2012. On completing the investigation, charge sheet was filed as aforesaid.
6. Ex.P-13 is the post mortem report and PW6 is the doctor who conducted the post mortem examination. The evidence of PW6 coupled with Ex.P-13 shows that the death was homicidal one. The accused did not dispute the cause of death, scene of offence except making some suggestion to the doctor that the death could be suicidal also. Such suggestion was not made to any other witness.
7. As already pointed out, the scene of offence and recovery of the dead body as stated in the spot mahazar Ex.P2 were not disputed. The said evidence shows that the dead body was found stuffed in M.O.1 in a folded manner.
If it was a suicidal death, how the dead body could be stuffed into M.O.1 is not explained by the accused.
8. PW2 the sister of the accused himself states that the death was homicidal one. PW-1 landlady, the neighbor, PW-3 father of the deceased and other witnesses state that the death was homicidal one.
9. The post mortem report showed the following injuries on the dead body:
(1) Fracture of thyroid bone (2) Contusion and hemorrhagic over the face.
(3) Neck upper, shoulder chest, bitten tongue.
The doctor also states accordingly. As per the doctor’s opinion, the cause of death was due to asphyxia as a result of smothering and fracture of thyroid bone. The accused in his statement under Section 313 of Cr.P.C., nowhere states that the death was suicidal one. Thus, the aforesaid evidence and Ex. P-13 rules out the case of suicidal death.
10. There are no eye witness to the incident. The case of the prosecution is based on the following circumstantial evidence.
i) Motive-Marital discord between the couple ii) Last seen together-The accused and deceased were last seen together and thereafter victim was found murdered.
iii) After the incident accused was absconding.
Regarding Motive :
11. According to the prosecution, the accused was suspecting the fidelity of the victim and he had extra marital relationship with one Padma. Therefore, for three years prior to the incident, he had deserted the victim and he used to quarrel with the victim Sujatha even after they started living together.
12. To prove the motive circumstance, the prosecution relies upon the evidence of PW3 – the father of the victim Sujatha, PW-5 brother of Padma another victim, PW-9 police Officer who has filed charge sheet in the murder case of Padma and Ex.P15 the charge sheet in CC No.2674/2011 of Channarayapatna Police Station whereunder, the accused was charge sheeted for the murder of Padma.
13. PW3 – the father of the deceased Sujatha , in his evidence states that there used to be fights between the accused and the deceased and two years after the marriage, the accused deserted the victim and therefore the victim and her daughter were residing with him at Jorohosuru. The said statement was not contraverted in the cross-examination of PW3.
14. PW3 further states that after three years, PW2 – Radha, the sister of the accused and her husband Gilbert mediated between the accused and deceased and her parents and at the intervention of PW2, they took the house of PW1 on rent and then, the accused and the deceased started living together. The evidence of PW5 and PW9 shows that accused has extra marital relationship with one Padma and he was charge-sheeted for murder of Padma.
15. There is no dispute that within one month after the accused and deceased started living together in the house of PW1, the incident took place. PW1 in her evidence stated that on the previous day of the incident, she found the accused and the deceased quarrelling with each other and the accused assaulting her. When she tried to intervene, accused asked her to attend to her own business. Such evidence of PW1 was reinforced by the suggestions of the accused himself to PW1. In para-6 of the cross examination of PW1, the accused suggested that on the previous day, the child was eating mud and therefore, the accused questioned Sujatha and then quarrel took place. Under such circumstance, the Trial Court was justified in holding that the circumstance of motive is proved.
Regarding last seen together :
16. The accused does not dispute that himself and the victim started living in the rented house of PW1. His contention was that he was working in Bangalore and he used to visit the house only once in a week and he was not at the house on the date of the incident. Thus the accused pleaded alibi.
17. When accused raises defence of alibi Section 103 of Evidence Act requires him to establish that. Since admittedly the scene of offence being the residence of the accused and deceased, the presence of the victim and accused there is natural and probable. That circumstance was further corroborated by the evidence of PW1 – landlady and the suggestions of the accused to her in the cross-examination that on the previous day of the incident, quarrel took place between the accused and the deceased on the issue of the child eating mud.
18. Further, the evidence on record clearly showed that the accused had come to reside in the house of PW1 with deceased as tenant about one month prior to the incident. As per accused himself, the said house was taken on lease by PW2 his sister. Thus, PW1 was a person known to the accused, his sister, the victim and her relatives. There is no dispute that the house of PW1 situated adjacent to the house where the incident took place.
19. Similarly, PW4 the other witness examined to prove the circumstance of last seen together and sighting accused leaving the scene of offence soon after the incident was the another neighbour. PWs1 and 4 being the neighbors, their presence in the locality is natural and probable. Therefore, the Trial court has rightly accepted the evidence of PW1 that the accused and the deceased were together on the previous day and she witnessed the accused quarrelling with victim and assaulting her. Further, her evidence showed that on the next morning, Sujatha was found dead and dead body was stuffed into M.O.1. in the same house.
20. Appellant’s counsel submits that as per PW4’s evidence, he learnt about the incident at about 12.00 p.m., when he was in Mandya and came back and saw the dead body. He further submits that as per post mortem report and inquest report, by 10.00 a.m., the dead body was shifted to the mortuary, therefore, the evidence of PW4 is unacceptable.
21. The evidence of PW4 is relevant only regarding he sighting the accused leaving the scene of offence in the morning on 15.02.2012. The alleged contradiction or variance in his evidence about the time of he seeing the dead body and time of shifting the dead body to mortuary does not demolish his evidence in total.
22. In the cross examination of PW4 his evidence that he is the resident of the neighbouring house is not disputed. He says that, while he leaving his house at 6.30 in the morning he found accused moving away from his house and on enquiry, accused said he is going to Bangalore.
23. The said evidence of PW4 is corroborated by the evidence of PW1 – the land lady, that on the previous day, the accused was in the house and next day, the house was found locked from outside.
24. Having regard to the facts and circumstances, the Trial Court held that PW1 and 4 are not interested witnesses and their evidence regarding the last seen circumstance and about accused leaving scene of offence in the morning and thereafter the victim was found dead is acceptable. This court does not find any perversity in such appreciation of evidence or reasoning of the Trial Court.
Regarding absconding – 25. According to the prosecution, after the incident, the accused absconded and that is the incriminating circumstance against the accused. The accused does not dispute that after the incident, he was not found at home and he was produced before the Court on 14.03.2012.
26. The accused in his examination under Section 313 of Cr.P.C. stated that he left on Monday for work, he worked up to Saturday, police took him to the police station on Saturday at 8.00 p.m., and produced before the Court after 20 – 25 days.
27. PW-11 the investigating Officer, in his chief- examination stated that the accused was not traceable and he deputed his staff to apprehend him. PW11 further stated that his staff apprehended the accused on 14.03.2012 from Sathyamangala in Tamil Nadu and produced before him on 14.03.2012 with a report which is marked at Ex.P-19. He further states that thereafter he interrogated the accused and produced him before the Court.
28. In the cross-examination of PW-11, there is no suggestion that soon after arrest, accused was not produced before the Court and he was kept under unlawful detention for 20-25 days. The order sheet of the committal court shows that the accused was produced before the Court on 14.03.2012 at 3.20 p.m., in the open court. It further shows that on enquiry by the Magistrate, the accused submitted that he was arrested on that morning at 7.30 a.m., and he did not complain any custodial ill-treatment. Thus, it is clear that when he was produced before the court, the accused did not complain of any unlawful detention. Therefore, the Trial Court has rightly rejected the contention of the accused that he was in unlawful detention.
29. The evidence of PW-1 that the incident came to the light when the brother of the accused came near the scene of offence is not disputed. Further, PW-2 – sister of the accused herself stated that on 15.02.2012 at 10.30 a.m., she came to know that Sujatha died. When his brother and sister were aware of the death of his wife, it is difficult to believe that up to Saturday, the accused was not aware of the death of his wife.
30. Accused does not turn up to the scene of offence and take any steps to report the matter to the police or to cooperate with them for investigation. Under such circumstances, the Trial Court accepted the case of the prosecution that the accused was absconding soon after the incident and such abscondance is an incriminating circumstance to infer that the accused was guilty of the offence.
31. Learned counsel for the appellant submits that the evidence of PW-1 cannot be believed because there is a contradiction in her complaint and evidence. He submits that in the complaint, she has stated that the complainant’s brother Somashekar came and enquired where the accused and deceased have gone and she informed that she doesn’t know, then Somashekar peeped in to the window, started shouting and then he broke open the lock with an iron rod and on entering into the house, the dead body of Sujatha was found in M.O.1 and she was found strangulated. He submits that in the evidence, PW1, states that on that day at 10.30 a.m., she found Somashekar breaking open the door of the house with an iron rod without enquiring them, then he got into the house and started shouting. He further submits that the non-examination of Somashekar is fatal to the prosecution.
32. The complaint was filed in the year 2012. PW1 was examined before the Court in the year 2013. Whether Somashekar first came and enquired her and thereafter opened the door or whether he went towards the house of the victim or she first sighted Somashekar breaking open the door of the house are not really much material. Her evidence with regard to the incident coming to the light on Somashekar coming near the scene of offence is consistent. The contradiction if any about Somashekar first peeping through the window and finding the victim dead or finding her dead body after breaking open the door do not go to the root of the matter. Due to the lapse of time and loss of human memory, such minor contradictions are bound to happen.
33. The death was homicidal one and it occurred in the house of the accused where he and the victim were ordinarily residing together. Therefore, how the incident occurred shall be within the special knowledge of the accused. Under such circumstances, having regard to Section 11 and 106 of the Indian Evidence Act, it was for the accused to explain how the death occurred. Though he set up the plea of alibi, he failed to prove the same.
34. The evidence on record showed that the relationship of the couple was not cordial and therefore, they were living separately for about three years. Within one month, soon after they started living together, the victim died homicidal death. As already pointed out, the evidence of PW1 showed that the accused found assaulting the victim on previous day. The evidence of PW1 and PW4 showed that they saw the accused leaving house next day morning and thereafter the victim was found dead. Taking into consideration all these facts and circumstances, the Trial Court held that the chain of circumstances was so complete that, it was pointing to the guilt of accused alone without giving room for any other hypothesis.
35. The evidence on record showed that after committing of murder, the victim was stuffed into M.O.1 – the corrugated TV box and house was locked from out side to give an impression that the inmates of the house have gone out. Therefore, the prosecution contended that there was an attempt of screening the evidence of offence on the part of the accused.
36. The fact that the dead body was stuffed into M.O.1 and house was locked from outside is proved by the evidence and circumstances as aforesaid. Therefore, Trial Court was justified in convicting the accused for the offence punishable under Section 302 and 201 of IPC. This Court does not find any infirmity or illegality in the impugned Judgment, order of conviction and sentence. Therefore, the appeal is dismissed.
We place on record our appreciation for the able assistance rendered by Sri. D. Nagaraja Reddy, panel Advocate of High Court Legal Service Committee and Sri. Vijayakumar Majage, Additional SPP in the matter.
Sd/- JUDGE Sd/- JUDGE Bkm/snc