IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.799 OF 2013 BETWEEN:
STATE OF KARNATAKA BY CIRCLE INSPECTOR OF POLICE MADIKERI RURAL CIRCLE MADIKERI KODAGU DISTRICT. ... APPELLANT (BY SMT. NAMITA MAHESH B.G., HIGH COURT GOVERNMENT PLEADER) AND:
HARIJANARA BABU @ PALE BABU @ BABU @ RAJU SON OF LATE CHOMA AGED 50 YEARS, COOLIE PRESENTLY WORKING UNDER SOMAIAH, BOLLUMADU VILLAGE NATIVE OF KUMBUR VILLAGE SOMWARPET TALK-571 236. ... RESPONDENT (BY SRI. T.A. BASAVARAJU, ADVOCATE – AMICUS CURIAE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE IMPUGNED ORDER OF ACQUITTAL DATED 17.01.2013 PASSED BY THE SINGLE JUDGE, KODAGU, MADIKERI IN SESSIONS CASE NO.59 OF 2011 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 AND 201 OF INDIAN PENAL CODE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 30.07.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
JUDGMENT This appeal is filed by the State challenging the judgment of conviction and sentence dated 17.01.2013 passed in Sessions Case No.59 of 2011 on the file of the Sessions Judge, Kodagu, Madikeri.
2. Brief facts of the case of the prosecution is that, the accused is the husband of the deceased Kathyayini. They were working in the land of P.W.1, B.A. Ramesh alias Chengappa, resident of Kolakeri Village, Madikeri Taluk. They were staying in the servant quarters which belongs to him. About five days prior to the incident, the accused and deceased came and joined as workers under P.W.1. That on 28.06.2010, P.W.1 had come to Madikeri on some personal work and he stayed back that night. While going to Madikeri, he had given a sum of Rs.600/- to the accused and the deceased. The next day i.e., on 29.06.2010, around 8.00 a.m., when he was in Madikeri, he received a phone call from the accused that his wife had died after consuming alcohol. Immediately he went to the servant quarters and found the front door was locked. He contacted the accused over his mobile phone, but the same was switched off. Therefore, he made enquiries in a doubt with his other servants. He secured the persons around and opened the door and found the dead body of the wife of the accused. He found injuries on both her elbows and immediately, he gave complaint and the case has been registered on 29.06.2010 at 10.00 a.m. in Crime No.65 of 2010 for the offence punishable under Sections 302 and 201 of Indian Penal Code. The accused absconded. The Police have investigated the matter and have filed the charge sheet for the offences punishable under sections 302 and 201 of Indian Penal Code.
3. The accused who had absconded was traced and he did not plead guilty. Hence, the prosecution, in order to prove the charges leveled against the accused has examined 12 witnesses as P.Ws.1 to 12 and got marked the documents Exs.P1 to P13 and M.Os.1 to 6 are marked. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure. In the said 313 statement, the accused has admitted that he and the deceased were working in the land of P.W.1 and was staying in the servant quarters provided to them. But he denied the other incriminating evidence against him.
4. The Court below, after hearing both the learned Public Prosecutor and learned counsel for the respondent-accused, has convicted the accused for the offence punishable under Sections 304 Part II of Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/-. In default of payment of fine, to undergo rigorous imprisonment for six months.
5. Being aggrieved by the judgment of conviction and sentence, the State has preferred this appeal. It is contended that the Court below has committed an error in coming to a conclusion that the accused has committed the offence punishable under Section 304 Part II of Indian Penal Code. The same is not sustainable in the eye of law. It has resulted in failure to appreciate the evidence available on record. The reasoning assigned for the acquittal of the accused for the offence punishable under Section 302 of Indian Penal Code is not proper and convincing. The facts in the case as well as the corroborative evidence definitely and conclusively proves the accusation against the respondent for the offence punishable under Section 302 of Indian Penal Code for which he stood charged. Hence, the same requires interference at the hands of this Court. There is no basis to convict the accused for the offence punishable under Section 304 Part II of Indian Penal Code.
6. Smt. Namitha Mahesh B.G., learned High Court Government Pleader for the appellant in her arguments vehemently contends that the Court below has committed an error in invoking Section 304 Part II of Indian Penal Code instead of Section 302 of Indian Penal Code. She would further contend that the sentence imposed for a period of three years for the offence punishable under Section 304 Part II of Indian Penal Code is very meager and hence, the same requires interference of this Court. In support of her contention, she has relied upon the judgment of the Hon’ble Supreme Court in the case of STATE OF KARNATAKA VS. VEDANAYAGAM reported in (1995) 1 SCC 326 with reference to paragraph Nos.4, 5 and 6 and would contend that the material available before the Court discloses that the accused himself committed the murder and thereafter, he locked the house and was absconding for a period of one year. Hence, the material available on record clearly discloses that the case attracts the offence punishable under Section 302 of Indian Penal Code and not under Section 304 Part II of Indian Penal Code.
7. This Court vide order dated 25.07.2019 has appointed Sri T.A. Basavaraju as the amicus curie on behalf of respondent-accused. In his argument, he vehemently contends that it is a case for acquittal and there is no material against the accused to convict the accused either for the offence punishable under Section 304 Part II of Indian Penal Code or under Section 302 of Indian Penal Code.
8. Learned counsel appearing for the respondent- accused in support of his contention has relied upon the judgment in the case of ANANT BHUJANGRAO KULKARNI VS. STATE OF MAHARASHTRA reported in AIR 1993 SC 110. He would contend that the recovery made was not in exclusive possession of the accused and hence, the accused could not have been convicted merely on the circumstances of last seen together. He would also rely upon the judgment in the case of STATE OF HARYANA VS. RAM SINGH reported in (2002) 2 SCC 426 to contend that the last seen evidence of the prosecution and other recoveries do not support the case of the prosecution. He further contended that since the Hon’ble Apex Court has held that benefit of doubt goes in favour of the accused, in the case on hand also, in the absence of material evidence, the benefit of doubt goes in favour of the accused.
9. Learned counsel appearing for the respondent- accused also relied upon the judgment in the case of KISHORE CHAND VS. STATE OF H.P. reported in 1990 CRI.L.J. 2289 SC to contend that all the circumstances from which conclusion of guilt has to be drawn must be fully established by the prosecution. Referring this judgment, he would contend that in the case on hand, the material placed before the Court is not sufficient to come to a conclusion that all the circumstances are proved against the accused since, the case rests upon the circumstantial evidence. He would also contend that the very conviction of the accused for the offence punishable under Section 304 Part II of Indian Penal Code is also not sustainable and it is a case for acquittal.
10. Having heard the arguments of learned High Court Government Pleader for the appellant-State and also the learned counsel appearing for the respondent-accused, the points that arise for our consideration are:
1. Whether the Court below has committed an error in not convicting the accused for the offence punishable under Section 302 of Indian Penal Code?
2. Whether the Court below has committed an error in sentencing the accused for three years only for the offence punishable under Section 304(II) of Indian Penal Code.
3. What order?
11. Points No.1 to 3:
The case of the prosecution is that the accused has committed the murder of his wife in the house wherein he was staying along with the deceased and thereafter, informing the P.W.1 about the death of his wife, he locked the house and went away. The Police, after registering the case for the offence punishable under Sections 302 and 201 of Indian Penal Code investigated the matter and filed the charge sheet. The prosecution, in order to prove the case, examined the witnesses P.Ws.1 to 12 and got marked the documents at Exs.P1 to P13. In order to prove the last seen theory of the prosecution since, the case rests upon the circumstantial evidence, the prosecution relies upon the evidence of P.Ws.1, 2 and 8.
12. P.W.1 is the complainant. In his evidence, he states that in the previous day i.e., 28.06.2010 evening at about 5.00 p.m., he gave Rs.600/- to the accused and both of them move together and thereafter he went to Madikeri. Both the deceased and accused came to his servant quarters 5 days earlier and were staying in the servant quarters. In the early morning on 29.06.2010, he received a phone call from the accused intimating the death of his wife. When he rushed to the spot, the accused was not there in the spot and found the door of the house locked. After securing the people around, he opened the lock and found the dead body of the deceased. It is suspected that the accused after committing murder has escaped from the place. Thereafter, he gave a complaint to the Police Station in terms of Ex.P1. In the cross-examination, it is elicited that before engaging the services of a person, normally he used to enquire the history of the said person. But he did not enquire the earlier owner of the estate in which both of them were working since, one of his servants, who brought them to work told that they were working earlier in the estate of one Raghu. It is suggested that the accused was not working with him and the same was denied. Further suggestion was made that she is not the wife of the accused and they were not staying in his servant quarters and the same was denied. It is also suggested that the accused did not call him and informed anything about the incident and the same was denied.
13. P.W.2 is another witness, on whom the prosecution placed reliance. In his evidence, he states that he found the dead body and both the hands were fractured and found swelling on the Face and the Police have drawn the mahazar in terms of Ex.P2 i.e., inquest mahazar and thereafter, put the signature on Ex.P2. He was subjected to cross-examination. In the cross- examination, it is elicited that things were not scattered in the house and there was no signs of a person staying in the house and also did not found the clothes of a male person. He admits that the contents of Ex.P2 were not explained to him.
14. The prosecution has also relied upon the evidence of P.W.3, who is a Woman Police Constable. She states that after the post mortem, she brought the clothes of the deceased and gave the same to the Police Station and identifies M.Os.1 and 2 and also her signature on Ex.P3. It is suggested that M.Os.1 and 2 does not contain any blood stains and the same was denied.
15. P.W.4 is another Constable, who took the F.I.R. and handed over the same to the Court. He also took the seized articles to Forensic Science Laboratory and identifies the seized articles as M.Os.1 to 4. In the cross- examination, he admits that, there are bus facilities from Napoklu to Madikeri for every ten minutes.
16. P.W.5 is another other Constable. He states that on 21.06.2011, he apprehended the accused in the plantation of Kumburu Village at 7.00 a.m. It is suggested that he did not arrest the accused and took him to the police station, the same was denied.
17. P.W.6 is the Doctor, who conducted post mortem examination and found injury Nos.1 to 3 and found the body in prone position with swollen face. The Doctor has opined that death has occurred as a result of hemorrhage and shock due to the injury sustained. He has also opined that the death must have occurred 12 to 18 hours prior to post mortem examination. He also deposed that a wooden piece shown to him could cause the injuries mentioned in Ex.P5-Wound Certificate. In the cross- examination, it is elicited that there was no injury to any vital part, the same was denied and he volunteers to state that bone is also vital part. The entire blood had not yet drained out when he conducted the post mortem examination. It was the radial vein which was cut. If the radian vein is cut, then there will not be much loss of blood. He did not find any food content in the stomach. It is suggested that 100 m.l. of water which he found in the stomach was alcohol and the same was denied. It is suggested that, if a person, who is drunken falls on a hard surface facing the ground, the injuries mentioned in Ex.P5 could be caused and the same was denied.
18. P.W.7 did not support the case of the prosecution regarding recovery of the weapon. But claims that one year ago, the accused was brought near the servant quarters and he did not find M.O.6. In the cross- examination, he admits that the Police came near the servant quarters on 21.06.2011 and the accused took the Police to his house. However, he admits his signature on the slip which was on M.O.6 and Ex.P6 was also written at the spot. Learned counsel for the accused in the cross- examination elicited that for the first time, he saw the accused when the Police brought him. Further, he admits that accused was not staying in the servant quarters of P.W.1. It is suggested that Police did not bring him and the accused did not take the Police to his house and the said suggestion was denied.
19. P.W.8 is the daughter of the deceased and she claims that, her mother was staying along with the accused and found the injuries on the dead body of her mother and her hand was fractured. In the cross- examination made by the Public Prosecutor treating her as hostile, it is elicited that accused and her mother were only residing in the house and the accused was absconding till his arrest. It is elicited that accused himself has committed the murder and went away locking the house. This witness was also subjected to cross-examination by the learned counsel for accused. It is elicited that she cannot tell the distance between the house in which her mother was staying and also the house of P.W.1. The witness also admits that her mother was not married to the accused.
20. P.W.9 is the Assistant Director, Forensic Science Laboratory. In his evidence he states that seized articles were sent to examination and he examined the same and found the blood stains on the same. The blood was ‘O’ group. The slip of the Laboratory for having returned the seized articles after examination is marked as Ex.P8. This witness was not subjected to cross- examination.
21. P.W.10 is the Sub-Inspector of Police, who registered the F.I.R and thereafter, handed over the further investigation to Investigating Officer. In the cross-examination, he admits that there are bus facilities from Napoklu to Madikeri for every 20 to 30 minutes and he handed over the F.I.R. to the Police Constable to give the same to the Court.
22. P.W.11 is the Carpenter. In his evidence, he states that the accused came along with the Police and the Police took me near the house of the accused. The accused produced the wooden piece removing the same from the haystack saying that the same was used to commit the murder. The Police have seized the same by drawing mahazar in terms of Ex.P6. In the cross- examination by the learned counsel for the accused, it is elicited that, around the house of the accused, there are coffee plantation and there no cattle shed next to the said house. He also states that he cannot say, who wrote the mahazar Ex.P6 but, claims that he read the contents of Ex.P6.
23. P.W.12 is the Investigating Officer, who conducted further investigation i.e., inquest in terms of Ex.P2. He also seized the articles which were found during inquest and states that he found the injuries on the dead body. After the post mortem, the clothes of the deceased were seized in terms of Ex.P3 and also state that he has sent the seized articles to Forensic Science Laboratory and recorded the statement of witness. He also states that the accused was apprehended and produced before him and he recorded the voluntary statement and thereafter, the accused took him and other witnesses near his house and produced the weapon from the haystack and mahazar was drawn in terms of Ex.P11 and he identifies the thumb impression of the accused in Ex.P12. The seizure mahazar was drawn in terms of Ex.P6. He was subjected to cross- examination. In the cross-examination, he admits that he did not enquire with regard to from which place the alcohol was brought and also he did not examine, if any wooden was broken in the house of the accused, which is in the nature of M.O.6. It is suggested that accused has not given any voluntary statement and also did not produce the weapon and the same was denied.
24. Having considered both oral and documentary evidence available before the Court and also the contention of the learned counsel for both the parties, this Court has to examine whether the Court below has committed an error as contended by the learned High Court Government Pleader for the appellant-State in coming to the conclusion that the offence comes within the purview of Section 304 Part-II of Indian Penal Code instead of Section 302 of Indian Penal Code.
25. The case rests upon circumstantial evidence.
In order to prove the last seen evidence, the only evidence available before the Court is P.W.1, who states that both the accused and deceased were residing in the Servant quarters. On the previous day i.e., on 28.06.2010 at around 5.00 p.m. and he gave Rs.600/- to the accused and he went to Madikeri. On the next day the accused called him and told the death of his wife. When he rushed to the spot, he did not find the accused at the spot. In the cross-examination of P.W.1, except suggesting that the accused did not call him and both of them were not working with him, nothing is elicited and only suggestions are made before the Court.
26. It is pertinent to note that the accused in the statement recorded under Section 313 of the Code of Criminal Procedure did not deny the fact that he himself and the deceased were working with P.W.1 and staying in the house provided by P.W.1 in his estate and hence, it is clear that P.W.1, has last seen the accused and deceased on the previous day.
27. Now the other circumstance is with regard to the body that was found in the house of the accused and the house of the accused was locked. On opening the lock, found the dead body and the same was spoken by P.W.1 and 2 and inquest was also conducted in terms of Ex.P2. In the cross-examination of P.W.2, except eliciting that the things are not scattered and there was no signs of persons staying in the house. The evidence of the Doctor, who has been examined as P.W.6 is clear that the deceased had sustained injuries on the left forearm and there was a fracture with an open wound and he has also opined that the death was caused as a result of hemorrhage and shock due to the injuries. In the cross-examination, it is elicited that the radial vein was cut and there will not be much loss of blood if radial vein is cut and did not dispute the cause of death of the deceased. The only suggestion was made that if a person, who is drunken falls on a hard surface, may sustain the injuries which are mentioned in Ex.P5 and the same was denied. An attempt is made that there was alcohol in her stomach and the same was denied. The learned counsel for the accused also made an attempt that the deceased has sustained the injuries on account of she falling on the hard surface. In the cross-examination of P.W.6, nothing is elicited that those injuries are sustained on account of fall. The evidence of P.W.6 is clear that it is a case of homicidal death.
28. The other circumstance is with regard to the recovery. The witness, who has been examined as P.W.11 supports the case of the prosecution that the accused came along with the Police and accused led the Police and also the witnesses near the haystack and produced the weapon wooden piece and mahazar was drawn in terms of Ex.P6. In the cross-examination, he states that coffee plantation is around the said servant quarters and nothing is elicited in the cross-examination that the accused did not take him and produce the weapon. The evidence of P.W.12 is also clear that accused led in and produced the weapon. In the cross-examination of P.W.12 also, nothing is elicited to disbelieve the evidence of P.W.12 regarding the recovery. Hence, the prosecution has proved even the recovery of weapon.
29. The other circumstance that accused was absconding for a period of one year, the evidence of P.W.1 is also clear that though the accused called him and told about the death of his wife, he was not there in the house.
The evidence of the prosecution is also clear that he was arrested after one year and the accused in his 313 statement did not give any explanation and also did not deny his abscondence. Hence, the very conduct of the accused has to be viewed seriously.
30. We would like to refer a judgment of the Hon’ble Apex Court reported in (2015) 1 SCC (CRI) 663 in the case of STATE OF KARNATAKA VS. SUVARNAMMA AND ANOTHER. The Hon’ble Apex Court in this judgment has held that once the prosecution probabalises the involvement of the accused but the accused takes a false plea, the same can be taken as an additional circumstance against the accused. In the case on hand, during the course of cross-examination, a plea was taken that the injuries which were found on the dead body of the deceased can be caused, if a person falls on a hard surface. Hence, the very conduct of the accused is important. It is relevant to noted that accused was arrested after one year and immediately after the incident, after intimating the death of his wife to P.W.1, he has absconded. The said circumstance is also not explained by the accused in his 313 statement. Instead of that, he categorically admits that he himself and deceased were living together in the house of P.W.1 which was provided to them and death has taken place in the dwelling house. Hence, it is the duty of the accused to explain the same under Section 106 of the Evidence Act and the same has also not been done in his 313 statement.
31. The Hon’ble Apex Court also in the judgment reported in (2012) 1 SCC (Cri) 1 in the case of JASPAL SINGH, DEPUTY SUPERINTENDENT OF POLICE VS. STATE OF PUNJAB has held that the accused has to explain the death of his wife under Section 106 of the Evidence Act when the death had occured in the dwelling house wherein both of them were residing together.
32. Having considered both oral and documentary evidence available on record, it is clear that the accused himself has committed the murder of his wife and thereafter absconded. There are no grounds to come to any other conclusion. The contention of the appellant counsel that the accused has not committed the murder and it is a case for acquittal cannot be accepted.
33. Now the question before this Court is whether the offence comes within the purview of Section 304 Part II of Indian Penal Code as held by the trial Court or it is a case under Section 302 of Indian Penal Code. It has to be noted that the medical evidence is clear that she has sustained the injury to left hand and there was a fracture and radial vein was cut and cause of death is also on account of the same. Here it has to be noted that if really the accused intended to take away the life of the deceased, he would have inflicted more injuries and there are no other injuries except, the fracture and radial vein cut and hence, the intention is missing. No doubt by using the weapon M.O.6, if he is likely to cause death, he would have inflicted more injuries but, there is no intention to take away the life of the deceased. None of the witnesses, even the daughter who has been examined as PW8, speak about ill-will. Hence, the conclusion arrived by trial Court that it is case under Section 304 Part II of Indian Penal Code is reasonable and we do not find any reason to come to a conclusion that it is a case under Section 302 of Indian Penal Code. Hence, we do not find any reason to reverse the findings of the trial Court. The trial Court has given reasons for bringing the case within the purview of Section 304 Part II of Indian Penal Code. Hence, we confirm the conviction of the accused for the offence punishable under Section 304 Part II of Indian Penal Code. Since it is a case of culpable homicide and there was no intention on the part of the accused to take away the life and with the knowledge of the fact that the said injury is likely to cause death, he inflicted the injury and as a result, the deceased succumbed to the injuries.
34. However, it is seen that on perusal of the sentence awarded by the trial Court, the trial Court has committed an error in sentencing the accused only for a period of three years. The very sentence imposed by the trial Court is very meager since due to the act of the accused, deceased lost her life and the Court below did not appreciate the said fact. The Court below has failed to consider the conduct of the accused who absconded after committing the murder. He was traced almost after one year. Taking away the liberty of a person to live is not a minor offence to impose a sentence of three years. The victim was aged about 46 years at the time of her death. Though accused has not married the victim, both of them were living as a husband and wife as deposed by the daughter of the victim. P.W.1, the owner of the plantation also states that both the accused and victim came together and asked to provide shelter and job and were staying in the house provided to them. The Court below also did not consider the fact that the accused assaulted her with wooden stick and as a result, she sustained fracture and cut of radial vein, due to which she succumbed to injuries. The accused after witnessing the injuries did not take her to the hospital to provide treatment. But, he kept quiet till morning and after confirmation of death, he called P.W.1 and informed the same and went away locking the house leaving the dead body inside the house. Hence, it is a fit case to enhance the sentence taking into account both oral and documentary evidence. Therefore, the sentence imposed by the trial Court requires modification as contended by the learned High Court Government Pleader for the appellant-State.
35. In view of the discussions made above, we pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The judgment of conviction dated 17.01.2013 passed in Sessions Case No.59 of 2011 on the file of the Sessions Judge, Kodagu, Madikeri for the offence punishable under Section 304(II) of Indian Penal Code is hereby confirmed.
(iii) The sentence imposed by the trial Court is modified. The accused is sentenced to undergo simple imprisonment for seven years instead of three years. The amount of fine imposed by the trial court remains undisturbed. In case of default to pay the fine amount, he shall undergo further simple imprisonment for a period of six months.
(iv) The trial Court is directed to secure the accused and subject him for sentence. Needless to state that if the accused was in custody during the course of trial, he is entitled for the benefit of set off under Section 428 of Code of Criminal Procedure.
Sd/- Sd/-
JUDGE JUDGE ST