IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL APPEAL No.23 of 2014 BETWEEN SHIVAMADEGOWDA, S/O MADEGOWDA, AGED ABOUT 52 YEARS, R/AT SHETTIKEREDODDI VILLAGE, UYYAMBALLI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT–562 117.
(BY SRI B ROOPESHA, ADVOCATE) AND STATE BY KODIHALLI POLICE, RAMANAGARA DISTRICT–562 117.
…APPELLANT …RESPONDENT (BY SRI VIJAYAKUMAR B MAJAGE, ADDITIONAL SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 6.12.2013 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA SITTING AT KANAKAPURA, RAMANAGARA DISTRICT IN S.C.No.81/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE AND SHALL PAY FINE OF RS.10,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR SIX MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
J U D G M E N T The appellant is the sole accused in SC No.81/2012 on the file of the II Additional District and Sessions Judge, Ramanagara, sitting at Kanakapura, Ramanagara District, who was convicted vide judgment dated 06.12.2013 for the offence under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- with default sentence of simple imprisonment for six months and also awarding an amount of Rs.8,000/- as compensation to PW.2 under Section 357 of Cr.P.C.
2. We have heard learned counsel for the appellant and learned Additional State Public Prosecutor for the State. We have carefully evaluated the oral and documentary evidence on record.
3. Before adverting to the submissions advanced by learned counsel for the appellant and learned Additional State Public Prosecutor, we feel it just and necessary to have the brief factual matrix of this particular case.
4. The prosecution divulges its case narrating that, the accused and his wife Parvathamma were residents of Shettikeredoddi Village, Uyyamballi Hobli, Kanakapura Taluk. The accused and deceased were residing together and they begot PW.2-Kumaraswamy as their son and Suma as daughter. It is alleged that, the accused was addicted to alcohol 10 years prior to the date of the incident. In this context, he was not taking care of the family, but he was demanding money often from the deceased. It is also alleged that, the accused was ill- treating and harassing the deceased in demand of money and in this regard, there were Panchayats held in the village. In spite of that, it did not heed any results.
5. It is the further case of the prosecution in the above said backdrop that, particularly on 24.03.2012, in the afternoon at about 1.30 p.m., when PW.2 and deceased were in their house, the accused came to the house and demanded money with the deceased and they started quarreling with each other and in fact, the accused went out of the house after abusing the deceased. Again he came back at 1.45 p.m. and started quarreling with his wife and demanded money for his vice habit of drinking. As the deceased did not provide any money, the accused took out a chopper, then the deceased ran away from the house, in spite of that, he chased her and assaulted her with the chopper on her neck and other parts of her body, which resulted in severe injuries to the deceased and she also succumbed to the injuries on the spot. This incident was actually seen by PW.2 and he in turn informed PW.1, who is none other than his maternal uncle. PW.1 then lodged a complaint before the respondent-Police, who registered a case in Crime No.33/2012 for the offence punishable under Section 302 of IPC and after thorough investigation, submitted the charge sheet against the accused/appellant for the aforesaid offence. The accused was also arrested on 26.03.2012 and since then, he has been in judicial custody.
After securing the presence of the accused, particularly after committal proceedings, the Trial Court has framed charges against him for the aforesaid offence and put the accused on trial. The prosecution in order to bring home the guilt of the accused, examined as many as 19 witnesses as PWs.1 to 19, got marked 17 documents as per Exs.P.1 to P.17 and during the course of cross- examination of PW.2, Exs.D.1 and D.2 were marked and MOs. 1 to 8 are the material objects marked during the prosecution evidence. The accused was also examined under Section 313 of Cr.P.C. As the accused did not chose to lead any defence evidence, the Trial Court after hearing both sides came to the conclusion that the prosecution has proved the case beyond reasonable doubt. Accordingly, the impugned judgment was passed.
6. Sri B. Roopesha, learned counsel for the appellant strenuously contends before this Court that, except the evidence of PW.2, who is said to be the eyewitness, no other materials are available to inculpate the accused. So many other independent eyewitnesses, neighbourers of the deceased have turned totally hostile to the prosecution. Even recovery of incriminating articles like clothes from the deceased and the accused were not substantially established before the Court. Therefore, the Trial Court has committed serious error in solely relying on the testimony of the sole eyewitness in order to draw inference of guilt against the accused. Therefore, he contended before this Court to re-evaluate the entire material on record and giving benefit of doubt, he requested for acquittal of the accused.
7. Alternatively, he has submitted that, even accepting the case of the prosecution there is ample material in the evidence of PWs.1 and 2 that, the accused and the deceased were often quarreling with each other with reference to vice habit of the accused and demand by the accused for money to meet his vice habit. Therefore, in a fur of the moment and heat of passion, due to sudden anger, the incident must have happened. There is absolutely no premeditation, there was any earlier incident showing that the accused at any point of time threatened to do away with the life of the deceased, he is not an anti- social element and there was no incident much less any bad antecedent so far as the accused is concerned. Therefore, learned counsel submitted that the offence may fall under Section 304 Part-II of IPC, but not under Section 302 of IPC. Therefore, the sentence may be modified to the extent for the period already undergone by the accused in jail.
8. Per contra, learned Additional State Public Prosecutor submitted before the Court that, the prosecution has led strong evidence of PWs.1 and 2, particularly PW.2 is none other than the son of the deceased and the accused. Nothing has been elicited in the course of cross-
examination as to why he has to falsely implicate his own father. Further added to that, the accused has acted in a very cruel and unusual manner to assault his wife and he has given more than one blow on the deceased knowing fully well that the weapon used by him and the parts of the body of the deceased selected by him are sufficient to cause the death of the deceased, if such blows are given. Therefore, there is no reason to bring down the offence from Section 302 of IPC to Section 304 Part I or Part II of IPC. Therefore, he contends that the prosecution has proved the case beyond reasonable doubt and no grounds are made out to interfere with the judgment of conviction and sentence passed by the Trial Court. Hence, he pleaded for dismissal of the appeal.
9. Before considering the important material evidence on record, it is just and necessary to have a cursory look at the evidence of the prosecution case.
10. PW.1-Swamy is the brother of the deceased and brother-in-law of the accused. He has spoken about the previous conduct, motive and receiving of the information about the incident from PW.2 and lodging the complaint as per Ex.P.1. PW.2-Kumaraswamy is the son of the accused and the deceased, who is an eyewitness who spoke about the incident apart from speaking about the conduct and motive of the accused. PW.3-Mahadevamma, PW.4- Muthuraju, PW.6-Ramesha and PW.7-Puttegowda are all neighbourers of the deceased and accused, said to have seen the incident, but they have not supported the case of the prosecution and turned hostile. Even PW.7 has not supported the case with regard to the recovery of clothes from the accused under Ex.P.5. PW.5-Gowramma is the sister of the deceased who is a hearsay witness with regard to the incident, but she has witnessed the inquest proceedings drawn under Ex.P.4. PW.8-Chandrashekar S.V. and PW.14-Krishnegowda are the witnesses to the seizure mahazar under Ex.P.7 i.e. seizure of the clothes of the deceased. PW.14 is also styled as an eyewitness, but they totally turned hostile to the case of the prosecution. PW.9-Motegowda is not only the witness to the mahazars Ex.P.8 and Ex.P.11, but is also witness to the recovery of a chopper or churi under Ex.P.8. He has also not supported the case of the prosecution. However, PW.10-Ramesh is the panch witness to Ex.P.8 who supported the case with reference to recovery of MO.3-churi from the accused. PW.11-Shivanna is of the same village who acted as panchayathdar to resolve the quarrel between the accused and the deceased. He is a hearsay witness so far as the incident is concerned, but he has also not supported the case of the prosecution. PW.12-Sukhananda is the panch witness to Ex.P.2 seizure mahazar of blood stained and unstained mud on the spot. He has also not supported the case. PW.13-N.Puttaswamy is the Assistant Engineer, PWD, who prepared the sketch of the seen of offence as per Ex.P.10. PW.15-Gopal K.H. is the Police Constable- 199, who apprehended the accused on 26.03.2012, at about 7.30 p.m., and produced him before the Investigating Officer. PW.16-Manju Mahadeva is another Police Constable-154 who carried the FIR to the Court as per Ex.P.13. PW.17-Shanaj Fathima is the Scientific Officer, who examined the articles sent to Forensic Science Laboratory for examination and she submitted a report as per Ex.P.14. PW.18-Dhananjaiah.V, Circle Inspector of Police, who conducted some investigation in this case, visited the spot and recovered some articles from the accused. PW.19-Dr.Vivek, is the person who conducted the Post Mortem examination on the dead body of the deceased and furnished the Post Mortem Report as per Ex.P.16. According to his report, the death of the deceased was due to shock and hemorrhage as a result of the injuries sustained.
11. On a careful re-look into the entire material on record, as noted above, many number of witnesses, who were examined as eyewitnesses and also for recovery of the clothes of the deceased and the accused, have turned hostile to the prosecution. The motive factor was spoken to by PWs.1 and 2, but PW.6 and other witnesses have turned hostile. PWs.7, 9 and 20 are the recovery panch witnesses with regard to the recovery of clothes of the deceased and the accused.
12. Looking to the above said evidence, in our opinion, the evidence of the eyewitness-PW.2 and the circumstantial evidence-PW.1, is the only available evidence to the prosecution even for the purpose of motive and the incident as to how it has taken place.
13. There is no much dispute with regard to the death of the deceased as could be seen from the cross-examination of PW.1. The death of the deceased is admitted, but it is suggested that, the deceased had some illicit intimacy with some other person and some other person must have committed the murder of the deceased. When the death is not disputed, the evidence of the prosecution witnesses, particularly PW.5, the sister of the deceased and PW.1, the brother of the deceased, who came to be spot after receiving the information about the death of the deceased is relevant. They, in fact, saw the dead body and found injuries on the dead body and opined about the unnatural death of the deceased. PW.5 is also a signatory to Ex.P.4- inquest, which clearly discloses that, the Police have drawn the inquest on the spot. PW.19-Dr.Vivek Dorai has deposed in his evidence and gave the opinion as per Ex.P.16-Post Mortem report, which clearly discloses that, the deceased has sustained severe injuries to her body on various parts. Ex.P.16 in fact discloses that the deceased had sustained the following injuries:
i) A clean lacerated wound over the neck at the level of thyroid cartilage measuring 12 cms. length x 3 cms. breadth x 2 cms. depth. Treachea oesophagus both side carotid artery and Jugular vein were cut;
ii) A clean lacerated wound over the left mandible extending from chin to temporal mandibular joint measuring 9 cms. length x 4 cms. Depth x 1.½ cm breadth mandible was fractured in left side and iii) A lacerated wound over the left temporal region 5 cms length x 1.½ cm breadth.
14. It is stated that there was fracture of mandible on left side. Ultimately, the doctor has opined that the death was due to shock and hemorrhage, as a result of injuries to major vessels and vital organs. These injuries could not be self-inflicted. Therefore, the third party intervention is absolutely necessary. Therefore, from the above said evidence, we are of the opinion that the prosecution has proved the homicidal death of the deceased.
15. As we have noted, the evidence of PWs.1 and 2 is only available. PW.2 is the eyewitness to the incident, who is none other than the son of the deceased and the accused. There is no reason for him to falsely implicate his father to the crime. Even there is no elucidation of any fact in the cross-examination as to why he has to falsely implicate the accused. PW.2 is not a child witness as he is matured aged more than 18 years and he had worldly knowledge and knew about the consequence of his deposition before the Court. The death of his own mother has occurred and in our opinion, he is the last person to screen the real offender. In this background, the evidence of PW.2 has to be looked into. Of course, we are conscious enough to evaluate the evidence of PW.2 because he is the sole eyewitness to the incident. Whenever the Court has to rely upon the evidence of the sole eyewitness, the evidence of such witness must be trustworthy and credible for acceptance. In this background, the evidence of PW.2 has to be evaluated.
16. PW.2 has categorically stated that his father, mother and himself were residing in Shettikeredoddi Village. The accused/appellant was addicted to alcohol and often there were quarrels with his wife demanding money for his vice habit of drinking. The deceased was also frustrated because of the said quarrel by the accused and she was refusing to pay any amount. In this context, it is stated that on 24.03.2012, which fell on Ugadi Festival day, at about 1.30 p.m, the accused and deceased and this witness were there in the house and accused demanded for money, but the deceased did not give him any amount, therefore he went away. Again he came back to the house and started quarreling with the deceased in demand of money. The deceased went out running away from the house to escape from the clutches of the accused, but the accused did not leave her, he chased her and assaulted her on her legs and also on the neck, due to which, she sustained severe injuries and died on the spot. After the incident immediately, P.W.2 telephoned to his uncle i.e. PW.1, who is none other than the brother of the deceased. PW.1 came to the spot and after seeing the dead body of the deceased, he lodged a report to police as per Ex.P.2.
P.W.2 has also identified the chopper used by the accused marked as MO.3.
17. In the course of cross-examination, nothing worth has been elicited. However, an attempt was made to show that this witness was not at all in the village on that particular day. It is suggested to him that on 24.03.2012, he was not in his house and he had been to the college, but the witness stated that, because that day was the day of Ugadi Festival, it was a Holiday and he was very much present in the house. He has also stated that his father had chopper/churi in his hand and assaulted three to four times on the legs and neck of the deceased. It is suggested that he did not scream for help at that particular point of time and he did not try to prevent his father. But all these suggestions have been denied. Except the above said suggestions, nothing worth has been elicited as we have already referred to that, it was suggested to this witness that he is giving false evidence because he is tutored by PW.1. Such a suggestion has also been denied. Looking to the evidence in our opinion, there is absolutely nothing in the cross-examination as to why this witness should be disbelieved. As we have said, he is none other than the son of the deceased and accused and parents are two eyes of the children. Therefore, there cannot be any doubt that in order to falsely implicate his father he gave evidence, who committed the murder of his mother. In this background, there is no reason to discard the evidence of this witness.
PW.1-Swamy. He is a hearsay witness with regard to the incident, but this witness has categorically stated that the accused, since ten years prior to the incident, was addicted to alcohol and even demanding money from the deceased and for that reason, he was assaulting, ill- treating and harassing the deceased. PW.1 came to know about the incident from PW.2 and immediately, he came to the spot and saw the dead body of the deceased and thereafter lodged a report. In the cross-examination, again it is reiterated what he has stated in the examination-in-chief. It is suggested to this witness that the deceased was having illicit intimacy with some other person and due to that reason, somebody might had committed the murder of the deceased. Even this witness has stated that, on the date of the incident also, about one hour prior to the incident, there was a quarrel between the accused and the deceased. The accused went out from the house and once again came back and started quarreling with the deceased. Though this witness is a hearsay witness, his evidence is admissible under Section 6 of the Indian Evidence Act, which is a connecting material stated by this witness immediately after the incident on receiving the information from PW.2.
18. Apart from the above evidence, we have the evidence of PW.10-Ramesh, who is panch witness to Ex.P.8 under which, the Police have recovered a chopper- MO.3 at the instance of the accused. The Investigating Officer-PW.18 has deposed before the Court that on 26.03.2012, Mohan Reddy-PSI and other staff have produced the accused before him and he arrested the accused. There were blood stained clothes on the accused, which are one Bunian and Lungi. They were recovered in the Police Station and mahazar was drawn under Ex.P.5, after the voluntary statement of the accused was recorded. He further stated that the accused took the Investigating Officer and the witness to a nearby land of one Muddamma at Shettikeredoddi and he produced one churi/chopper from a channel in the said land. The same was recovered under Ex.P.8-mahazar. The accused has also shown the place of incident and the mahazar was drawn as per Ex.P.11. It is also stated that under Ex.P.2- spot mahazar, the Police have also seized the clothes of the deceased which are marked at MOs.4 to 6 after Post Mortem Examination, under Ex.P.7. However, so far as Ex.P.5 is concerned, the witnesses have not supported with reference to the seizure of clothes from the accused. PW.7-Puttegowda to some extent has deposed that he has put his signature to Ex.P.5 and the police have taken his signature on a blank paper. PW.8-Chandrashekar S.V has not supported the case of the prosecution so far as Ex.P.7 is concerned. However, PW.10-Ramesh has stated that the accused has produced MO.3-Chopper/churi and this witness was very much present at that time and he signed the mahazar-Ex.P.8. So far as this recovery is concerned, the witness has reiterated with regard to the recovery even in the course of cross-examination. There is no reason to disbelieve the evidence of this witness. The overall evidence shows that the above said knife/chopper and the clothes of the deceased and the clothes of the accused were all sent to Forensic Science Laboratory (FSL) and PW.17-Shanaj Fathima, Scientific Officer, FSL, has stated that under Ex.P.14 all these articles contained blood stains of the deceased. Though this circumstance has not been established beyond reasonable doubt except recovery of knife or chopper at the instance of the accused, but the other circumstance, in our opinion, the evidence of eyewitness PW.2 and corroborative evidence of PW.1 are strong enough to draw an inference that the accused is the perpetrator and he is the person who was responsible for the death of his wife. Therefore, we do not find any strong ground to interfere with the judgment of conviction passed by the Trial Court.
19. Now, the other question that arises before this Court is whether such act falls under Section 302 or 304 of IPC.
20. Though there are no sufficient material in the course of cross-examination of PWs.1 and 2, the Court has to visualize the entire case of the prosecution and the surrounding circumstances of the case. In this context, it is worth to refer a decision of the Hon’ble Apex Court, wherein in a similar matter, the Hon’ble Apex Court has observed as to how the Courts have to consider the case when an incident takes place. It is the case reported in AIR 2008 SC 927 (between RAMESH KRISHNA MADHUSUDAN NAYAR and STATE OF MAHARASTRA) whereby, the Hon’ble Apex Court has dealt with a similar situation where the solitary eyewitness was relied upon.
21. It was observed that, the murder has taken place in a sudden quarrel between the accused and the deceased. The accused gave two blows by wooden long on the head of the deceased. Therefore, considering the circumstances, the Court held that the accused is entitled to Exception 4 of Section 300 of IPC and, therefore, he was convicted for the offence under Section 304 Part-I of IPC.
22. In another similar case reported 2005(12) SCC 176 (between JASRAM vs. STATE OF MADHYA PRADESH), the facts of case are also little bit relevant. In the above said case, the facts are; Causing death of wife by hitting a single blow with a hammer on her face – Incident taking place in the early hours of the day and the sole child eyewitness, deceased’s son PW.1, rushing to his uncle’s (PW.2’s) house in the night and narrating what he had seen –PW.2 giving information and FIR registred-PW.1 deposing before the court that while he was in the room appellant demanded earrings of the deceased and on her refusal he snatched and put them in his trouser pocket and that, pursuant to the quarrel, appellant hit his mother with the hammer. During the course of investigation blood stained hammer and earrings recovered- Medical report showing that though deceased suffered multiple injuries on her nose, chin and upper part of the face but they could have been caused by a single blow and doctor who conducted post-mortem not disputing this fact. In the above said circumstances, the Hon’ble Apex Court held, evidence of the child, PW.1 reliable and the contention that he was tutored by relatives cannot be accepted-Evidence regarding recovery of the hammer and earrings corroborated the evidence of PW.1, and PW.2 supported the case of PW.1.- On facts held, it was possible that there had been a sudden quarrel and in the heat of passion appellant hit the deceased which resulted in her death.- Therefore, the offence would fall under Section 304 Part-I and not under Section 302 of IPC and sentenced him to undergo imprisonment for seven years.
23. Applying the above said factual aspects and the principles laid down by the Hon’ble Apex Court to the facts of this case, in this case also, there is absolutely no allegation with regard to bad antecedents of the accused or not projected as an anti-social element in the village. It is purely a domestic quarrel that had taken place between the husband and wife. Though the husband and wife were quarreling since long for more than 10 years, as the deceased was addicted to alcohol, the matter never reached any climax so that the accused assaulted the deceased at any point of time and caused injuries on her. But on the ill-fated day i.e. the incident day, it happened as stated by PW.2. PW.2 has stated that accused came to the house first, quarreled with his mother and went out and once again came back and started quarrelling with the deceased demanding money and the deceased refused for the same and thereafter the deceased went out from the house and the accused chased her and assaulted on her legs, head and neck and caused severe injuries on her.
24. The above said circumstance, if it is seen with reference to the particular date of the incident, which was an Ugadi festival day, the accused must have been frustrated because he had no money for drinking purpose. He might have come to the house and demanded money and while talking heated words must have been altercated between the husband and wife, otherwise it would have been a simple and ordinary quarrel that was usually taking place earlier also, which never created a situation wherein the accused lost his patience and assaulted the deceased. Therefore, when the accused came to the house, he was not armed when there was a quarrel with the deceased, there was also no arm in his hand, but when the deceased went out of the house, he must have taken the chopper, chased her and assaulted her. Though these facts do not meticulously depict as to what exactly transpired between the husband and wife, but it goes without saying that something unusual situation must have occurred during the quarrel between the husband and the wife, that something more had made the accused to lose his patience and gone to the extent of quarreling with his own wife and assaulting her due to sudden heat of the quarrel.
25. In the above facts and circumstances, in our opinion, the incident must have happened in a sudden quarrel in a heat of passion and the accused must have lost his balance of mind and committed such an offence. Though he has assaulted her three to four times, but the only one blow that fell on the neck of the deceased was serious and fatal. Therefore, looking to the above said facts, we are of the opinion that the offence at the most may fall under Section 304 Part I of IPC, but not in a straight jacket manner fall under Section 302 of IPC. Hence, giving the benefit of the above said circumstances, the accused is liable to be convicted for the offence under Section 304 Part I of IPC. Of course, the accused was little bit over-exaggerated and assaulted selecting the vital parts of the deceased not only once but three to four blows. Therefore, he is said to have acted in a cruel manner and his act was not acceptable. Therefore, considering the above said facts, we are of the opinion that if we sentence the accused to undergo ten years of simple imprisonment and pay fine of Rs.50,000/- it would meet the ends of justice. Out of the fine amount, Rs.40,000/- to be allocated as compensation to PW.2, the son of the accused and the deceased, who lost his mother, and his father who went behind the gallows. Therefore, with this we proceed to pass the following order;
ORDER Appeal is partly allowed.
(i) The judgment of conviction and sentence passed by the Trial Court i.e. II Additional District and Sessions Judge, Ramanagara, sitting at Kanakapura in S.C. No.81/2012 is hereby set aside particularly for the offence under Section 302 of I.P.C. Consequently, the appellant is acquitted for the charged leveled against him for the offence under Section 302 of IPC.
(ii) However, the accused-appellant is convicted for the offence under Section 304 Part I of IPC. He is sentenced to undergo simple imprisonment for ten years and to pay a fine of Rs.50,000/-, in default, he shall undergo simple imprisonment for a period of six months.
(iii) On deposit of the fine amount, Rs.40,000/- shall be paid to PW.2 as compensation under Section 357 of Cr.P.C. The remaining Rs.10,000/- shall be credited to the State.
The appellant is entitled to the benefit of set-off under Section 428 of Cr.P.C.
SD/- JUDGE SD/- JUDGE mv