IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 28TH DAY OF JUNE, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.251 OF 2012 C/W CRIMINAL APPEAL NO.764 OF 2012 CRL.A.NO.251 OF 2012:
BETWEEN:
SRI RAVI @ RAVI KUMAR AGED ABOUT 28 YEARS, S/O MYAKALA THIMAPPA, RESIDENT OF DODDASAGARASANAHALLI VILLAGE, KAMASAMUDRAM HOBLI, BANGARPET TALUK, KOLAR DISTRICT – 563 101. ... APPELLANT (BY SRI G.PAPI REDDY, ADVOCATE) AND:
THE STATE BY KAMASAMUDRAM POLICE BANGARPET TALUK, KOLAR DISTRICT REPRESENTED BY ITS STATE PUBLIC PROSECUTOR.
... RESPONDENT (BY SRI VIJAY KUMAR MAJAGE, ADDL.SPP) ***** THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 14.2.2012 PASSED BY THE P.O., FAST TRACK COURT, KGF IN S.C.NO.133 OF 2010 – CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO IMPRISONMENT FOR 14 YEARS AND SHALL PAY A FINE OF RS.8,000/- AND IN DEFAULT TO PAY THE FINE AMOUNT, HE SHALL UNDERGO R.I. FOR A PERIOD OF ONE YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
CRL.A.NO.764 OF 2012:
BETWEEN:
STATE OF KARNATAKA REPRESENTED BY INSPECTOR OF POLICE, KAMASAMUDRAM POLICE. ..APPELLANT (BY SRI VIJAY KUMAR MAJAGE, ADDL.SPP) AND:
RAVI @ RAVI KUMAR AGED ABOUT 28 YEARS, S/O MYAKALA THIMAPPA, RESIDENT OF DODDASAGARASANAHALLI VILLAGE, BANGARPET TALUK. …RESPONDENT (BY SRI G.PAPI REDDY, ADVOCATE) ***** THIS CRL.A IS FILED UNDER SECTION 377 OF CR.P.C., PRAYING TO MODIFY THE INADEQUATE ORDER OF SENTENCE DATED 14.2.2012 PASSED BY THE P.O., FAST TRACK COURT, KGF, IN S.C.NO.133 OF 2010 – BY IMPOSING MAXIMUM SENTENCE ON THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. RESPONDENT/ACCUSED IS SENTENCED TO UNDERGO IMPRISONMENT FOR 14 YEARS AND SHALL PAY A FINE OF RS.8,000/- AND IN DEFAULT TO PAY THE FINE AMOUNT, HE SHALL UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF ONE YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THESE CRL.As COMING ON FOR HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT The case of the prosecution is that, about 12 years prior to the date of incident, the daughter of C.W.1 namely, Prema was given in marriage to C.W.17 Sampangi, the elder brother of the accused. They begot a female child. After the child was born, Prema was having an illicit relationship with C.W.12 Narayanappa. The same was known to others. Prema used to go to the village to cook food at the Government Primary School. Narayanappa would frequently go and meet her there. A male child was born out of the relationship. In January, 2010, Prema came to the house of C.W.12 along with her children and he kept her in a separate house. The accused and his brother came there and took the daughter of Prema to their house. Prema used to abuse and insult them whenever she met them. On 10-6-2010 at about 6.30 p.m. when the deceased Prema was taking water from the water tank of the village and when she was going in-between the houses of Venktappa and Srinivas, the accused chopped off her neck. She fell down. The accused put his leg on her, caught hold of her hair and cut her neck and killed her. He went away towards the garden land and fell down by sustaining injuries. A complaint was lodged by P.W.1, the father of the deceased. The accused was arrested. The investigation was taken up and the charge sheet was filed. The accused pleaded not guilty. When the matter was set down for trial, in order to prove the case, the prosecution examined 20 witnesses and marked 24 Exhibits along with 10 Material Objects. One witness was examined on behalf of the accused. The trial court convicted the accused for the offence under Section 302 of IPC and sentenced him to undergo imprisonment for 14 years and to pay a fine of Rs,8,000/- and in default of payment of fine to undergo rigorous imprisonment of one year for the offence punishable under Section 302 of IPC. Aggrieved by the same, the accused has filed Criminal Appeal No.251 of 2012 seeking reversal of the Judgment of conviction passed by the trial court and praying for his acquittal. Criminal Appeal No.764 of 2012 is filed by the State seeking enhancement and an appropriate sentence.
2. P.W.1 is the complainant and the father of the deceased. P.W.14 is the mother of the deceased. It is stated in their evidence that about 12 years prior to the incident their daughter Prema, namely, the deceased was given in marriage to one Sampangi who is none other than the elder brother of the accused. They lived together peacefully for sometime. A daughter was born. Thereafter the deceased gave birth to another child. She lived with them for 3 years. She used to go to School at Doddasagarasanahalli to cook food. Thereafter she left her house and was residing in another house along with her children. The villagers were aware of the illicit relationship with one Narayanappa. The police came to his house and told him that his daughter was chopped off. They took his LTM on the complaint at Ex.P-1. P.W.14 has further deposed that her daughter and son-in-law used to quarrel with one another. She was living with her children. Thereafter, she went to her mother-in-law’s house and did not come to their house. The police told her that her daughter had died.
3. P.W.2 is a witness to the inquest and the spot mahazar who has turned hostile. P.W.3 is a witness to the spot mahazar as well as the Inquest mahazar. P.W.4 is the witness to the seizure of the clothes of the accused, in terms of Exs.P-4 and P-5.
4. P.W.6 is the eye witness to the incident. She has stated that she knows the deceased and the accused. That about 8 months prior they were near the shop of P.W.8 and at that time, when the deceased was taking water, the accused came there and assaulted the deceased with a chopper on her neck and she fell down. The accused caught hold of her neck and cut her neck with a chopper and thereafter he ran away. The accused also put his leg on the body of the deceased and cut her neck.
5. P.W.7 has stated in her evidence that she also knows the accused and the deceased. She was in her house when the incident took place. When she heard the noise, she came out of the house. She saw that the accused had chopped off the neck of the deceased and was holding the chopper in his hand. She has further narrated that Narayanappa is her elder uncle’s son and Narayanappa had kept her in a separate house.
6. P.W.8 is another eye witness. She has stated that Sampangi is Prema’s husband. The accused is the elder brother of Sampangi. She has stated that on the date of the incident, she saw Prema taking water from the village tank. At that time, the accused came there and cut her neck with a chopper and he put his leg on her body and cut off her neck.
7. P.W.9 Narayanappa is the person who is alleged to be living with the deceased. P.W.10 is the person before whom the accused made the statement of having committed the murder of the deceased. P.W.12 is the husband of the deceased and the elder brother of the accused. He has not supported the case of the prosecution. P.W.13 is the photographer. P.W.15 speaks about the motive for the commission of the offence.
P.W.16 is the Junior Engineer who has prepared the sketch. P.W.17 is the Doctor who has conducted autopsy and furnished a post-mortem report. P.W.18 is the Doctor who examined the accused for the injuries sustained by him. P.W.19 is the Investigation Officer who conducted the investigation by sending a request to the FSL for recording the statement etc. P.W.20 is the PSI who received the complaint and apprehended the accused.
8. Based on the evidence of the eye witnesses, the trial court was of the view that the evidence corroborates one another. That P.Ws 6 & 8 being the eye witnesses have witnessed the incident and the manner in which the incident took place. Nothing worthwhile has been elicited in their cross-examination to disbelieve them. They have seen the manner in which the accused has assaulted the deceased with the sole intention of committing her murder.
9. The learned counsel for the appellant contends that the complainant namely, the father P.W.1, the mother P.W.14 and the husband of Prema P.W.12 have not supported the case of the prosecution. As such their case cannot be accepted. We are unable to accept his contention. The entire case of the prosecution is that the deceased was having an illicit relationship with Narayanappa. Even though she continued to be the wife of P.W.12 Sampangi, a male child was born out of the said relationship. The same was within the knowledge of the villagers. The villagers had also informed the same to the parents. In this background and in view of the conduct of the deceased her parents as well as the husband would necessarily turn hostile. If not, the statements made by the villagers and the fact of the deceased having an illicit relationship and a child was born, would stand proved. Therefore, in the normal course of conduct, P.Ws.1, 12 and 14 have turned hostile and have not supported the case of the prosecution. It cannot be said to be unnatural. Based on the facts and circumstances they were justified in turning hostile.
10. So far as the commission of the offence is concerned, the appellant’s counsel contends that there was no motive to commit the offence. That the case of the prosecution is that the deceased was having an illicit relationship with P.W.9. It was not an incident that had recently occurred. The relationship continued for a long period of time. Therefore, there was no cause or a motive. The same can be substantiated since a child was born out of the relationship. We are unable to accept such a contention. The fact of the deceased having an illicit relationship with P.W.9 is borne out from the records and evidence. Even a child was born out of the relationship. Therefore to say that there was no provocation to commit the offence cannot be accepted. The accused is none other than the younger brother of the lawful husband of the deceased namely, P.W.12. He was enraged by the continuous illicit relationship of his sister-in-law. That might have prompted him to commit the acts. Even otherwise the question of motive does not lend any credence. P.Ws 6 & 8 have both narrated the manner in which the offence has taken place. When the eye witnesses have supported the case of the prosecution, when nothing worthwhile has been elicited in the cross-examination to disbelieve them, the motive sought to be propounded by the appellant therefore becomes irrelevant.
11. Further, the contention of the appellant is that the recovery of the chopper namely, M.O.9 has not been proved by the prosecution. However, the evidence on record shows that so far as P.W.5 is concerned, he would narrate that he went along with the accused and the police to the house of P.W.12 and thereafter M.O.9 was seized in his presence. Therefore, it cannot be said that the seizure of the weapon has not been proved by the prosecution.
12. It is further contended that the photographs of the accused have not been obtained. We are of the view that, even if that has not been done, the same would not be fatal to the case of the prosecution.
13. The further contention is that the incident took place beyond a distance of about 1 ½ furlong from where the eye witnesses have seen the incident. Therefore, the witnesses could not have seen the incident at all.
14. We have examined thoroughly the evidence of the eye witnesses P.Ws 6 & 8. There is not even a suggestion that the distance between the eye witnesses and the scene of offence was to such a great extent, that the eye witnesses could not have seen the incident. No such suggestion is made to the eye witnesses. In the absence of any question being asked to the eye witnesses such a presumption cannot be drawn. There cannot be an assumption so far as the statement of the witnesses is concerned.
15. We have considered the post mortem report in terms of Ex.P-15. The Doctor, who conducted the post mortem, P.W.17 has narrated the injuries sustained. He has stated that there was lacerated wound on the right shoulder etc. He has stated that the neck is separated from the body. But part of the neck are still attached to the body on the left side of the neck. This would clearly indicate that the entire neck has been chopped off from the body. It is only hanging on by the parts of the neck which are attached to the body. Therefore, the nature of the injuries sustained would clearly reflect the manner in which the incident has occurred. It would also indicate that there was a strong intention by the accused to commit the murder of the deceased. Hence, we are of the view that the findings recorded by the trial court is just and proper.
16. The last contention of the appellant is that the offence charged against the accused requires to be read down. That there was no intention to commit the murder by the accused. That in a fit of anger, in view of the relationship that his brother was having with the deceased, the incident has occurred and there was no intention to commit the offence at all.
17. The evidence of P.Ws 6 & 8 would indicate the manner in which the incident occurred. The evidence of P.W.17 the Doctor who conducted post mortem has stated that the neck is separated from the body but still attached because of some part of the neck. The evidence and the medical report if taken together, cannot be said that there was no intention to commit murder. In fact, the material would clearly point out to the only conclusion that the object of the accused was to commit murder of the deceased which was committed in a most brutal manner. He has chopped off her neck, he has put his leg on her head, he has caught hold of her hair and separated the neck from the body. In view of such evidence, it cannot be said that the offence could be read down to Section 304 Part-2 of IPC.
18. Under these circumstances, we find no good ground to interfere with the well considered order of conviction passed by the trial court.
19. The appeal by the State is to the extent of enhancement of punishment. They contend that the sentence awarded by the trial court is inadequate. We have considered the same. The accused was sentenced to undergo imprisonment for 14 years and to pay fine of Rs.8,000/- and in default, to undergo rigorous imprisonment for one year. We are unable to accept the sentence awarded by the trial court. There is no provision of law to award a sentence of imprisonment for 14 years when the accused has been convicted for offence under Section 302 of IPC. The punishment that can be awarded in law is death or imprisonment for life and shall also be liable to pay fine. Therefore, the sentence awarded by the trial court is erroneous. The same stands modified directing the accused to undergo a sentence for imprisonment for life along with the fine amount and in default of payment of fine to undergo rigorous imprisonment for a further period of one year.
For the aforesaid reasons:
1) Criminal Appeal 251 of 2012 is dismissed.
2) Criminal Appeal No.764 of 2012 is allowed.
The sentence awarded by the trial court is modified. The respondent-accused is sentenced to undergo imprisonment for life and to pay a fine of Rs.8,000/- and in default of payment of fine, he shall undergo rigorous imprisonment for one year for the offence punishable under Section 302 of IPC.
Appeals disposed off accordingly.
SD/- SD/-
JUDGE JUDGE Rsk/-