IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE B. A. PATIL CRL.A. NO.1905/2017 (C) BETWEEN SRINIVAS S/O VARADAIAH @ VARADHE GOWDA AGED ABOUT 37 YEARS R/AT MAREGOWDANADODDI MADABAL HOBLI MAGADI TALUK RAMANAGARA DISTRICT ... APPELLANT (BY SRI. VISHNUMURTHY, ADV.) AND STATE OF KARNATAKA BY RAMANAGARA RURAL POLICE STATION REP. BY SPP, HIGH COURT OF KARNATAKA, BENGALURU – 560 001 ... RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION 28.04.2014 AND SENTENCE DATED 29.04.2014 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA IN S.C.NO.12/2012 – CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 498(A), 304(B) AND 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant-Srinivasa (A1), who is the aggrieved, has challenged the judgment of conviction and order of sentence passed by the I Addl. District and Sessions Judge, Ramanagar in SC No.12/2012 vide judgment dated 28.04.2014 convicting him for the offences punishable under Sections 498-A, 304(B) and 302 of IPC.
2. The trial Court has convicted the appellant/accused for the above said offences and sentenced him to undergo imprisonment for life and to pay fine of Rs.20,000/- with default sentence of two years simple imprisonment for the offence punishable under Section 302 of IPC and also sentencing him to undergo simple imprisonment for two years and to pay fine of Rs.1,000/- with default sentence of two months simple imprisonment for the offence punishable under Section 498-A of IPC.
3. Before adverting to the grounds urged and elaborated by the learned counsel for the appellant before this court, we feel it just and necessary to cull- out some of the factual aspects, which gave rise to the implication of the accused in the crime.
4. It is the case of the prosecution that, the accused person is none other than the husband of deceased Mamatha and their marriage took place long back and at the time of the marriage, it is alleged that Accused No.1 and his family members have demanded for dowry and also some gold and silver articles, and after taking them in consideration of the marriage, the marriage took place between the accused and the deceased Mamatha. After the marriage, the deceased started living in the house of the accused at Maregowdana Doddi, Magadi Taluk. They lived happily for some time and thereafter, it is alleged that the accused and his mother started ill-treating and harassing the deceased in demand of further dowry and also gold and silver articles etc. The deceased was frustrated in the life. For that reason and as she was not having cordiality with Accused Nos. 1 & 2, she left the conjugal company of Accused No.1 and sheltered herself in the house of her parents viz., PW.4:Father- Sri. Puttaswamaiah and PW.7:Mother-Susheelamma.
4.1. It is the further case of the prosecution that, even after the deceased went to her parents house, the accused used to visit the house of her parents also and there also he was making demands and also ill-treating and harassing the deceased Mamatha. However, the visitation of the accused to the parental house of the deceased Mamatha was not objected by her parents, perhaps thinking that, his visit to their house may join the husband and wife together and they also may lead good life, in future.
4.2. In the above context it is alleged that, particularly on the date of the incident ie., on 11.08.2011, at about 3.00 or 3.30 p.m., in the afternoon, the accused went to the house of the parents of the deceased. At that time, the parents (PW.4 and PW.7) of the deceased were not in the house and they went to the neighbour’s house to enquire about the health of their neighbor and the deceased was alone in the house. However, they have seen accused coming to their house by holding a a black plastic bag in his hand and went inside the house. Thereafter, they heard the screaming noise of deceased Mamatha from their house and they went near their house and some other people were also came near their house on hearing the screaming noise and they saw that the accused running away from their house with blood stained clothes on his body and as well as the blood stained chopper in his hand. Immediately the parents and other witnesses gathered there, went inside the house and saw the deceased lying in the pool of blood with her right hand palm was completely cut and the left hand was virtually tagged on to the skin which was also almost cut and she had also sustained injuries to other parts of the body like eye, ear, stomach etc. Immediately, they came to the conclusion that the accused was the only person who has committed such an offence.
4.3. PW.1-Ramakrishna, who is the cousin brother of the deceased went to the Police Station and lodged a report as per Ex.P1. Initially the police have registered a case in Crime No. 246/2011 against Accused Nos.1 & 2 for the offences punishable under Sections 498(A), 307, 109 r/w. 34 of IPC. Subsequently, the deceased was shifted to the hospital and she succumbed to the injuries on the next day morning on 12.08.2011 at about 5.10 am. Thereafter, the father of the deceased (PW.4) has gave one more statement as per Ex.P3, on the basis of which the police have converted the case for the offences punishable under Sections 302 and 304-B of IPC and also under Sections 3 and 4 of the Dowry Prohibition Act in Crime No. 246/2011.
4.4 After registration of the case, the Investigating Officer (PW.20) has thoroughly investigated the matter and submitted the charge sheet against the accused for the above said offences.
4.5 It is the case of the prosecution that after committing the offences, the accused voluntarily went to the jurisdictional police station and surrendered himself, and he was arrested and his blood stained clothes were recovered by the Police, and there was recovery of a chopper and a shirt at the instance of the accused and after investigation, the police have submitted the charge sheet.
5. The prosecution in order to bring home the guilt of the accused, examined as many as 20 witnesses as PWs. 1 to 20 and got marked Exs. P1 to P23 and also the material objects as per MOs. 1 to 20.
6. After examining all the prosecution witnesses, the accused was also examined under Section 313 of Cr.PC.. The accused except denying the incriminating evidence available against him in the prosecution evidence, no special defence has been taken by him nor he has led any defence evidence as such.
7 The learned Sessions Judge after hearing the counsel for the accused and the learned Public Prosecutor, and after appreciating the oral and documentary evidence on record, rendered the impugned judgment.
8. We have heard the arguments of Sri.
Vishnumurthy, the learned counsel for the appellant and the learned SPP for the respondent-State. We have carefully re-evaluated the entire oral and documentary evidence on record. Perused the judgment of the trial Court.
9. Learned counsel for the appellant has strenuously submitted before the court that, though the prosecution has examined 20 witnesses as PWs. 1 to 20 and got marked the documents as Exs. 1 to 23 and material objects as MOs. 1 to 20, the material witnesses are only PWs. 1, 3, 4, 5, & 7, in fact, who have actually deposed against the conduct of the accused on the date of the incident. There are serious contradictions and omissions in the evidence of the said witnesses. Out of the said material witnesses, some of the witnesses are relatives and because of their relatedness, they want to fit the accused in a criminal case and as such, they might have deposed falsehood to put the accused behind the bars.
entire evidence of the prosecution, it clearly discloses that the accused has not selected any vital part of the body of the deceased and he has assaulted on the hands and stomach of the deceased which are not normally treated as vital parts of the body. Therefore, he might have not intended to kill the deceased and he might not be knowing that, such assault may cause the death of the deceased. Therefore, the offence may not fall under Section 302 of IPC and it might fall under Section 304 of IPC.
11. Per contra, the learned Additional SPP has drawn our attention to the evidence on record submitted that, the accused was really intended to do away with the life of the deceased. The accused with a pre-meditation, purchased a chopper and sharpened the same and taking advantage of the situation that, when the deceased was alone in the house, entered the house and mercilessly chapped off the parts of the body of the deceased. This clearly discloses that, the intention of the accused was to do away with the life of the deceased, as there was lot of differences between the wife and husband, his wife did not go back to his conjugal company in spite of his repeated demands and requests. Therefore, he contended that, because of the merciless act of the accused, he should not be shown any mercy as his act is unusual and cruel in nature. Therefore, he argued before the court that there is absolutely no ground to interfere with the judgment of conviction and order of sentence passed by the trial Court.
12. Having heard the arguments of the learned counsel for the appellant/accused and the learned Additional SPP, we have to carefully go through the evidence of the prosecution witnesses. Hence, we would like to have a cursory look at the evidence of the prosecution witnesses.
12.1 PW.1 is the cousin brother of the deceased.
As we have already stated, he has spoken about the conduct of the accused prior to the incident and at the time of the incident and also after the incident.
12.2 PW.2-Mahadevaiah is another important and special witness to speak about the purchase of a chopper by the accused just prior to the incident and after getting it sharpened, he went away from the shop of this man.
12.3 PW.3-Aslam Pahsa, PW.4-D.R.
Puttaswamaiah, the father of the deceased, PW.5-Smt. Sujatha who is another neighbor and PW.7- Susheelamma, the mother of the deceased have categorically stated about the previous conduct of the accused and also the conduct of the accused at the time of the incident and all these witnesses have specifically spoken about the presence of the accused at the time of the incident and he going out of the house of PW.4 & PW.7 ( the parents of the deceased Mamatha) with blood stained clothes on his body and also with a blood stained chopper.
12.4 PW.6-Ramalingaiah is another brother of the deceased. He has deposed that, on receiving the information about the incident from PW.1, at about 3.30 on that particular day, when he was in BESCOM office. He came later and saw the deceased sustaining severe injuries. He also stated about the previous conduct of the accused with regard to the demand of dowry, ill-treatment and harassment to the deceased.
12.5 PW.8- Sampath Kumar, PW.10-Sridhar who are familiar with the family of PW.1, have deposed that, actually they have seen the accused on that particular day and they have also in fact present in the Police Station when the recovery proceedings taken place with regard to the blood stained clothes of the accused and also the accused taking the Police to the place where he has hidden some articles and produced a shirt and as well as a chopper and also the police recovering the same under various exhibits.
12.6 PW.9-Devaraj is the inquest witness and panchayatdar. He has deposed that, prior to the incident, he had been to the house of PW.4 (father of the deceased Mamatha) and he has participated in several panchayaths to advise the accused and the deceased Mamatha. In fact this witness has also stated that after the death of Mamatha, he attended the inquest proceedings and he has also seen the injuries on the body of the deceased Mamatha.
12.7 PW.11 –Govindaraju is the person who was working as an Assistant Engineer in PWD, Ramanagara has deposed that, on the request of the police, he gone to the spot and prepared the sketch as per Ex.P11.
12.8 PW.12-Ramesh is another panch witness to Ex.P2 the spot manazar drawn by the police during which, the material objects (MOs. 1 to 9 – Clothes and other articles belonging to the deceased) were seized by the police.
12.9 PW.13-Lakshmamma is the Paternal Aunt of the deceased. She has also stated about the ill- treatment and harassment meted out by the accused to the deceased, as the same was told to her by the deceased on various occasions.
12.10 PW.14-M. Revanna is the scribe of the complaint and he has stated that, PW.1 has dictated the complaint averments as per Ex.P1 and he wrote the complaint and thereafter, it was lodged by PW.1 before the police.
12.11 PW.15-G. Praveen Babu is the Police Sub- Inspector, Ramanagar, who stated to have registered the case on the basis of Ex.P1 in Crime No.246/2011 for the offences punishable under Sections 498(A), 307, 109 r/w., 34 of IPC initially and he has spoken about the accused coming to the Police Station and recovery of some articles at the instance of the accused.
12.12 PW.16 – Dr. Indira Lakshman Asangi is stated to have conducted post-mortem examination on the dead body of the deceased Mamatha. She narrated the injuries sustained by the deceased and has given her opinion that the death of the deceased was due to shock and hemorrhage as a result of multiple injuries sustained by her.
12.13 PW.17- Ravi M. Thrillapur, the Tahsildar, who stated to have conducted inquest proceedings on the dead body of the deceased Mamatha.
12.14 PW.18-Mahaveer is the person who has stated that he has been running a shop in the name and style of Mahaveer jewellars. He has spoken about the jewels purchased by PW.4 for the purpose of marriage of the his daughter Mamatha.
12.15 PW.19-Hanumanthaiah is the person, who assisted the investigation and in fact, he has taken photograph and vediograph of the dead body, which are marked at MO.15 etc.
12.16 PW.20-M.G. Ramakrishna is the Investigating fficer, who conducted investigation and laid the charge sheet against the accused.
13. On careful perusal of the above said evidence and the cross-examination portion of the witnesses viz., 1, 3, 4, 5 & 7 it is noticed that, they have categorically stated that, they have actually seen the accused when he was going inside the house of PW.4 on that particular date when deceased Mamatha was alone in the house. Particularly PW.1, who is the cousin brother of the deceased has deposed that, on that particular day, he was near his house which is situated at a close distance to the house of PW.4 and he saw the accused going inside the house with a black plastic cover and at that time the deceased Mamatha was alone in the house. PWs. 1 & 2 were also talking in the house situated opposite to the house of PW.4. PW.4 and PW.7 had been to enquire about the ill-health, of their neibourer. After some time of the accused going inside the house of PW.4, they all heard the screaming noise of Mamatha and immediately the said witnesses went near the house of PW.4 and they saw the accused coming out and in fact he forcibly pushing PW.1, ran away from the house of PW.4. At that time they saw the accused was holding a chopper in his hand and went towards Sugganahalli Village. He also deposed that, at that time the clothes worn by the accused were stained with blood. PW.1 has also stated that, PW.4 & PW.7 also came little later to that particular spot and other witnesses PW.3-Ashok Kumar and PW.5-Sujatha the neighbourer also came to the spot and they all went inside the house and saw that the, deceased Mamatha was lying on the ground in a pool of blood having her right hand palm was completely cut and left hand was also virtually cut and tagged to the skin and there were also injuries on the eye, left ear and she was also sustained severe injury to her stomach wherein omentum was out from the stomach.
14. The said evidence of PW.1 is fully corroborated by the evidence of PWs. 3, 4, 5, and 7. However, the learned counsel has pointed-out various contradictions. According to him, PW.7 has stated that, PW.3-Ramakrishna came to the spot late and he has also pointed out from the evidence of one Sujatha (PW.5) that PW.1 had come to the spot in the evening. Therefore, there is no possibility of this witness (PW.3) being present at that time. However, in the course of their evidence, they are in one way or the other have stated his (PW.3’s) presence at the spot. Though PW.1 has stated that he informed the brother of the deceased Ramakrishna, who was working in BESCOM at that particular point of time. Ramakrishna has also stated that, he received information about the incident from PW.1 at 3.30 p.m , which shows that by 3.30 pm. itself PW.1 had got information about this particular aspect. Therefore, one sentence in the evidence of PW.5 cannot be taken out from the other abundant evidence available on record showing the presence of PW.1 at the spot. Though there are some contradictions and omissions with regard to the sequence of events taken place and the timings and also the accused running away from the spot, as some of the witnesses have stated that the accused was still inside the house when they went there, the accused was holding chopper and the deceased was lying in the pool of blood. But the totality of the evidence of the above witnesses, even accepting the contradictions and omissions as narrated by the learned counsel, but still the core of the prosecution case has not been disturbed to the effect that these witnesses were present when the accused actually ran away from the house of the deceased Mamatha with blood stained clothes on his body and also a blood stained chopper holding in his hand. Immediately after he ran away from the place of incident, all of them went inside the house and saw the deceased Mamatha lying on the ground in a pool of blood sustaining severe injuries on various parts of her body. Therefore, the circumstances which are established before the court, show that the Mamatha was alone inside the house when the accused had entered into that house with a chopper disguising the same in a black plastic cover and he ran away from the said spot with blood stained clothes and also with a blood stained chopper in his hand and immediately without waste of time, the witnesses went inside the house and saw the injured lying in a pool of blood. These circumstances clearly establish that the accused must be present and who is the perpetrator of the crime.
15. Apart from the above said evidence, the Doctor (PW.10) and PWs. 3 & 17 who are the inquest panch witnesses, have all categorically stated about the injuries. The Doctor (PW.10) has deposed that, at the time of post-mortem examination, she observed as many as 9 injuries on the body of the deceased and most of the injuries were chapped wounds and she has also observed that, right hand was completely cut off upto the wrist level and left hand was cut above the elbow level and it was attached to the tag of skin. So other injures were also proximal in nature and according to the Doctor, the reason for the death of the deceased was because of the shock and hemorrhage due to multiple injuries sustained by her. Therefore, the above facts and circumstances clearly show that only at the intervention of the accused, the death has been occurred. Therefore, the prosecution has successfully established the homicidal death of the deceased Mamatha.
16. The another important factor ie., established by the prosecution is that, the accused voluntarily going to the Police Station and surrendering himself. PW.20 and PW.1 have categorically stated in their evidence that, when PW.1 was in the Police Station, while he was giving a report, the accused himself came there and in fact he has disclosed to the police in presence of PW.1 that he has committed the murder of the deceased and immediately the Investigating Officer (PW.20) arrested him and recorded his statement. It is suggested in the course of cross-examination of PW.20 that, though the accused was not surrendered before the Police, but the police have actually arrested him, but he has given a false statement before the police that, he voluntarily surrendered. But the facts and complete reading of the evidence discloses that, the accused went to the Police Station and surrendered himself. PW.8 and PW.10 have categorically stated that, they were secured to the Police Station by PW.20 and in their presence, the police have recovered the blood stained Banion and as well as the blood stained pant of the accused at that particular point of time and the police have also recorded the voluntary statement of the accused. At that time the accused has disclosed that he has thrown his shirt and a chopper at different places and he stated that, if the police take him, he would show those places, where he has thrown the said incriminating articles.
17. The further deposition of this witness coupled with the evidence of PW.20 is that, the accused actually took the police and panchwitnesses to the land belonging to the accused and shown a chopper and brought out the same from the midst of Jawar Crop and the police drew up mahazar on the spot as per Ex.P8 and the chopper was recovered which is marked as MO.13. It is also stated by them that the accused took them to a Government Channel near Sugganahalli Village and shown the shirt which was thrown into the Government Channel and the shirt was also stained with blood and the police have recovered the same under a mahazar (Ex.P9) as per MO.14. The witnesses have also identified their presence in the photographs, which are marked at MOs. 19 & 20.
18. In the course of cross-examination, nothing has been elicited except suggesting that the police have not done all these things. Even it was reaffirmed in the course of cross-examination, though it was suggested that the accused did not produce those articles, but the witnesses have stated that the police have actually recovered them and drew up mahazar and thereafter only they signed the mahazar. There is no reason for disbelieving all these witnesses, as nothing has been elicited in the course of their cross-examination as to why the above witnesses have to depose falsehood against the accused person.
19. Looking to the above evidence of the above witnesses, the strong circumstances which have been projected by the prosecution that, the deceased was alone in the house, when the accused entered into the house and committed such an offence. The above said circumstance of using the alleged chopper by the accused is also substantiated by the evidence of PW.2. In fact, PW.2 has stated that, he has been running a hardware shop at Magadi Road, Ramanagara Town. He has stated that, about 1 or 2 years prior to the evidence before this court, the accused went to his shop and purchased a chopper for a sum of Rs.300/- and in fact, he paid Rs.50/- to the near by shop for the purpose of sharpening the said chopper and thereafter, the accused took the chopper and went away. Of course in the course of cross-examination he has stated that, he is running a very small shop and therefore, he was not in the habit of giving any receipt for the amount paid by the customers. He has seen the said chopper before the court and he identified the chopper as that was the same chopper which was purchased by the accused on that particular day. Even after some suggestions, nothing worth has been elicited from this witness to disbelieve the evidence of this witness.
Therefore, this evidence also substantiates pre- meditation of the accused to cause some danger to the life of the deceased on that particular day when he entered the house of PW.4 and he was fully prepared by purchasing chopper and went to the house of the deceased.
20. Though we cannot draw an inference that the accused had intended to kill the deceased when he entered the house of the deceased Mamatha, but, in fact he chopped off the hands and stomach and other parts of the body of the deceased. The evidence of the Doctor shows that such injuries on any person are sufficient to cause the death of a person in the ordinary course and in fact she has stated that, due to the said injuries sustained by the deceased, she died. Therefore, it clearly goes to show that the accused intended to do away with the life of the deceased. Therefore, he went inside the house with a chopper with premeditation to do away with the life of the deceased and with that intention, he assaulted the deceased in such a manner. Therefore, we find absolutely no reason to draw any inference that the offence would fall under the provisions of Section 304 Part-II of IPC, as such we do not find any reasons to interfere with the judgment of the trial Court and also the sentence passed by the trial Court.
21. Apart from the above, the evidence of the witnesses viz., PWs. 1, 4, 6, 7 have categorically, specifically and candidly stated about the previous conduct of the accused that, the accused was treating the deceased with love and affection for some time after the marriage and for some time, they both lived happily. Thereafter, he started ill-treating and harassing the deceased and suspecting her fidelity and he was demanding dowry. The relatives are the proper persons who can speak about the conduct of the accused. They have deposed that, the deceased was telling before them about the conduct of the accused. Though Accused No.2 was acquitted of the offence under Section 498-A, but there is ample and strong evidence against Accused No.1 with regard to ill- treatment and harassment given by him to the deceased and for that reason alone, she left the conjugal company of Accused No.1 and sheltered herself with her parents. Therefore, though there are some discrepancies in the evidence of the prosecution witnesses, but on over all re-evaluation of the entire evidence on record, we find absolutely no ground to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court. Hence, we pass the following order:-
ORDER The appeal is devoid of merit and the same is liable to be dismissed. Accordingly, the appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE KGR*