Karnataka High Court
Chandrashekara vs State Of Karnataka on 23 October, 2020
Bench: B.Veerappa, K.Natarajan
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23rd DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.1574 of 2015
BETWEEN
CHANDRASHEKARA,
S/O. THIMMANAIK,
AGED ABOUT 30 YEARS,
AGRICULTURIST,
RESIDING AT SHIGGLUR VILLAGE,
CHANNAGONDA, SAGAR TALUK,
SHIVAMOGGA DISTRICT - 577 201.
...APPELLANT
(BY SRI Y.S. SHIVAPRASAD, ADVOCATE)
AND
STATE OF KARNATAKA
BY KARIGAL P.S. (SAGAR TALUK),
REPRESENTED BY SPP.,
HIGH COURT BUILDINGS,
BANGALORE - 560 001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 16.11.2015
PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS
2
JUDGE, SHIVAMOGGA SITTING AT SAGAR IN S.C.No.31/2014-
CONVICTING THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 302 AND 201 OF THE INDIAN
PENAL CODE.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 14.10.2020 AND COMING ON
FOR PRONOUNCEMENT THIS DAY, NATARAJAN, J., DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal is filed by the sole accused challenging the judgment of conviction and order of sentence dated 16.11.2015 passed in SC No.31/2014 by the V Additional District and Sessions Judge, Shivamogga sitting at Sagar (for short 'Trial Court'), for having convicted him for the offences punishable under Section 302 and 201 of Indian Penal Code (IPC) and sentencing him to undergo imprisonment for life i.e. he has to remain in prison till his death and he shall also pay fine of Rs.25,000/- in default, to undergo imprisonment for one year and further sentenced him to undergo rigorous imprisonment for 10 3 years and to pay fine of Rs.10,000/- for the offence punishable under Section 201 of IPC.
2. The case of the prosecution is that on the complaint of PW.1-Venkatappa, the father of the deceased Seethamma, the Police registered the case against the accused for the aforesaid offences. It is alleged by the complainant in his complainant that on 04.10.2015, his daughter-Seethamma went to coolie work in the APMC yard, but did not return. Then he went to the house of his daughter and found that it was locked. He enquired and searched for his daughter, but not found. Therefore, he lodged a missing complaint to the Police on 07.10.2013 suspecting one Dyavappa of that village who was frequently visiting his daughter's house and helping her. It is the further case of the prosecution that when the Police enquired with Dyavappa, who is the elder brother of the accused, it was revealed by Dyavappa that he was having illicit relationship with Seethamma, who is a widow having a daughter. During the enquiry, the said Dyavappa 4 revealed that the accused who is his younger brother was blaming the deceased saying that Dyavappa was spending all his earnings to Seethamma without bothering to perform the marriage of his three younger sisters and because of the illicit relationship of Dyavappa, no one came forward to marry the accused. Therefore, the accused used to quarrel with Seethamma.
3. It is the further case of the prosecution that when the Police secured the presence of the accused for enquiry, the accused made a confession that on the background of illicit relationship between his elder brother and the deceased, the family relationship was spoiled and no one came forward to give bride to him and his elder brother was not looking after his three younger sisters and was not bothered about their marriage. Therefore, he picked up a quarrel with Seethamma and assaulted her. When she shouted, the accused got angry, pushed her forcibly, as a result, she fell down on a stone, sustained injury on her head and was not in a position to speak. Therefore, the 5 accused took up a stone and again assaulted on her head and caused her death. Thereafter, he buried the dead body of Seethamma in the forest area. On the confession made by the accused, PW.1-father of the deceased lodged a complaint against the accused and the Police registered the case in Crime No.75/2013 for the offences punishable under Sections 302 and 201 of IPC and arrested the accused, recorded his voluntary statement. The accused also revealed that he will show the place where he assaulted the deceased, committed the murder and the place of burial of the deceased. The Investigating Officer, panchas and PW.1 accompanied the accused. The accused went to the forest area and showed the spot where the offence was committed and handed over the stone which was used by him for assaulting the deceased. The same was recovered under the panchanama. Then he led them to the place where the dead body was buried. The Police with the help of the villagers exhumed the dead body of the deceased. The Tahsildar conducted the inquest panchanama on the dead body of the deceased and the 6 Investigating Officer also secured the doctor for conducting Post-Mortem examination. The accused also took the Police to his house and produced the anklets of the deceased to the Police. The same was recovered under the panchanama. Thereafter, the Investigating Officer completed the investigation and filed the charge sheet against the accused. The learned JMFC took cognizance of the offence and committed the case to the Court of Sessions. The accused was released on bail and the Trial Court secured the presence of the accused, framed the charges for the aforesaid offences. The accused pleaded not guilty and claimed to be tried.
4. In order to prove the case, the prosecution, in all, examined 14 witnesses and got marked 24 documents as per Exs.P.1 to P.24 along with the Material Objects MOs.1 to 5. The learned Trial Judge, after the conclusion of the evidence of the prosecution, recorded the statement of the accused under Section 313 of Cr.P.C. The incriminating evidence adduced against the accused has been read over 7 and explained to the accused. The case of the accused is one of total denial, but not entered into any defence.
5. After hearing the arguments, the Trial Court found the accused guilty and convicted him for the offences punishable offences under Sections 302 and 201 of IPC and sentenced him to undergo imprisonment for life i.e he has to remain in prison till his death for the offence punishable under Section 302 of IPC and rigorous imprisonment for ten years and fine for the offence punishable under Section 201 of IPC. Hence, the accused is before this Court way of appeal.
6. We have heard the arguments of Sri Y.S.Shivaprasad, learned counsel for the appellant/accused and Sri Vijayakumar Majage, learned Additional State Public Prosecutor for the respondent- State.
7. Learned counsel for the appellant/accused strenuously contended that the judgment of conviction and 8 the sentence passed by the Trial Court is not sustainable in law. The Trial Court relied upon the recovery of the dead body, stone and anklets which were recovered at the instance of the accused based upon the voluntary statement made by him before the Investigating Officer as per Section 27 of the Indian Evidence Act (for short 'I.E. Act'). Therefore, the very recovery under Section 27 of the I.E. Act is not sustainable under law. He urged three reasons for discarding the recovery, firstly that MO.1-stone which was recovered by the Investigating Officer based upon the voluntary statement of the accused from the open place is accessible to the public and it is not a hidden place. Therefore, the very recovery of the stone is not admissible in evidence as the accused went to the spot for producing the same; secondly, he contended that as regards the recovery of the dead body of the deceased, PW.12-Tahsildar has stated in his evidence that as directed by his superior Assistant Commissioner on 12.10.2013, he went to the spot on 13.10.2013 for conducting the inquest panchanama which shows that the Police had prior 9 knowledge about the burial of the dead body earlier to the confession statement made by the accused before the Police. Therefore, the confession statement leading to recovery of the dead body is not sustainable and thirdly, learned counsel urged that the accused was not at all in the custody and he was not arrested by the Police while giving the voluntary statement. Therefore, the alleged voluntary statement is hit by Section 154 of Cr.P.C. Hence, the entire episode of recovery of dead body, stone and the voluntary statement are not sustainable for convicting the accused.
8. Learned counsel for the accused further contended that in a case where the prosecution has relied upon the circumstantial evidence, the prosecution is required to prove all the circumstances satisfactorily to connect the accused with the crime, but none of the circumstances is proved by the prosecution. The motive is also a weak piece of evidence. The Police manipulated the information for implicating the accused falsely in this case. PW.4- 10 Narayanappa, a villager, has turned hostile and his evidence was not considered by the Trial Court. The voluntary statement made by the accused is not admissible under Sections 25 and 26 of I.E. Act. Hence, prayed for allowing the appeal by setting aside the judgment of conviction and order of sentence passed by the Trial Court.
9. Learned counsel also vehemently contended that the very punishment imposed by the Trial Court is harsh. Even though the punishment prescribed for the offence punishable under Section 302 of IPC is death or imprisonment of life, the death punishment shall be awarded only in the rarest of rare cases and in the regular course, the punishment is always for the life. But the Trial Court imposed punishment for life and ordered to remain in prison till his death is impermissible. The very observation and imposing of the punishment is nothing but interference with the power of the State for providing remission under Sections 432 and 433 of Cr.P.C. 11 Therefore, learned counsel alternatively contended that though the prosecution is not able to prove the case against the accused, however on perusal of the entire evidence on record, it shows that there was a quarrel between the accused and the deceased and due to sudden provocation, the accused pushed the deceased and she fell down on a stone, sustained injury and died, which goes to show that there was no intention for the accused to commit the murder of the deceased. Therefore, in case, this Court comes to the conclusion that the accused is responsible for the death of the deceased, then the sentence may be reduced by taking into consideration the family background of the accused, as the sudden quarrel occurred between the accused and deceased. Therefore the case squarely falls under Section 304 Part II of IPC and prayed for taking a lenient view while imposing sentence.
10. Per contra, learned Additional State Public Prosecutor supported the judgment of conviction and order of sentence passed by the Trial Court and contended that the 12 prosecution is able to establish the offence committed the accused based upon the evidence of PWs.1, 3 and 4. They have spoken about the illicit relationship between the accused and the deceased. The evidence of PW.4 shows that he came to know about incident only when the villagers were talking about the death of the deceased. That itself cannot be a ground to reject the evidence of PW.4. He further contended that the Police while conducting the enquiry on the missing complaint filed by the father of the deceased, they secured the presence of Dyavappa, the brother of the accused. At that time, he has given information that the accused used to quarrel with him and the deceased and he has whispered that the accused might have done something to the deceased. Thereafter, the Police secured the presence of the accused and while enquiring, the accused confessed the crime and the Police have not recorded the confession statement by that time, PW.1-father of the deceased was also present in the Police Station. Immediately, PW.1 lodged the complaint to the Police and the Police registered the case. 13 Thereafter, the Police arrested the accused and later, recorded his voluntary statement in writing. Then the accused disclosed that he will show the place, the stone and also the place where he committed the murder and buried the dead body. Thereafter, the Police along with the Tahsildar and the doctor accompanied the accused. The accused showed the place of commission of the murder and the place of burial. Thereafter, the dead body pf the deceased was exhumed and inquest panchanama was conducted. Hence, the prosecution is successful in proving the recovery of the dead body on the disclosure statement of the accused and the Police also recovered the anklets of the deceased from the house of the accused. The accused has not explained as to how the anklets of the deceased came to his custody and how he kept the same in his house. He has also produced MO.1-stone which was used for assaulting the deceased. The prosecution has proved the circumstances, the motive and the recovery of the dead body beyond all reasonable doubt. Therefore, 14 the finding of the Trial Court does not call for any interference.
11. Learned Additional State Public Prosecutor also countered the alternative argument advanced by learned counsel for the accused that there is no material on record to show that the accused and the deceased quarreled and due to sudden fight the accused killed her due to sudden provocation and there is no material on record to show that the offence committed by the accused would fall under any of the Exceptions to Section 300 of IPC. The prosecution is able to prove the homicidal death of the deceased. The injury found on the head of the deceased was ante-mortem in nature as per the opinion of the doctor which goes to show that the accused with an intention to commit the murder of the deceased, assaulted on her head and after causing her death, he buried the dead body in a lonely place at a forest area. He further contended that the stone was also recovered from the forest area which is not accessible to the public. 15 Therefore, the recovery of MO.1-stone, the dead body and the anklets of the deceased were proved satisfactorily. He further contended that the entire recovery made by the Police based on the disclosure statement of the accused has been recorded by Videograph and the CD is also marked as MO.4, which clearly reveals the factum of recovery made by the Police. Therefore, he prayed for dismissal of the appeal.
12. In view of the rival contentions of learned counsel for the parties and on perusal of the record, the point that arises for our consideration is:
" Whether the appellant/accused has made out a case to interfere with the judgment of conviction and order of sentence passed by the Trial Court for the offences punishable under Section 302 of IPC by imposing imprisonment for life till death and 10 years rigorous imprisonment with fine for the offence punishable under Section 201 of IPC?"
13. On perusal of the entire evidence on record, it is clear that the entire prosecution case rests upon the circumstantial evidence, there is no eyewitness to the 16 incident and the prosecution has also mainly relied upon four circumstances. In order to appreciate those circumstances, it is necessary to have a cursory look at the evidence of the prosecution witnesses, which are as under;
i) PW.1-Venkatappa is the father of the deceased who gave missing complaint on 7.10.2013 stating that his daughter went to coolie work on 4.10.2013, but when she did not return back, he suspected Dyavappa, the brother of the accused, as he used to visit his daughter's house frequently. He has stated that the Police secured the presence of the accused and the accused confessed that he committed the murder of his daughter and immediately, he lodged the complaint to the Police on 13.10.2013. He has also stated that the accused is the cause for the death of his daughter and he has identified Ex.P.1-complaint. He has supported the prosecution case. He also identified the photographs of his daughter as per Exs.P.2 to P.4 and also identified the footwear of the deceased, stone and anklets of the deceased. He also identified the dead body of the deceased as per Ex.P.5 and stated that the accused 17 committed the murder of his daughter. During the cross- examination, learned counsel for the accused tried to bring out that there was enmity between the accused and PW.1 in respect of cultivating the land by encroaching the forest land and denied the illicit relationship between Dyavappa and the deceased. The same was denied by PW.1. Except some information regarding his daughter having love affair with somebody and got a female child, nothing has been elicited to disbelieve the evidence of PW.1 in respect of the missing of the deceased and filing of the complaint by him after coming to know the information given by the accused.
ii) PW.2-Bogaraju is the inquest panch witness to the inquest proceedings conducted by the Tahsildar as per Ex.P.6. He has spoken about the recovery of the dead body of the deceased by exhuming in the presence of the Tahsildar and other panchas. He has identified the photographs of the dead body of the deceased as per Exs.P.5 and P.7. In the cross-examination, he has further asserted that he was summoned by the Tahsildar and went 18 to the place where the body of the deceased was exhumed by crossing the stream by a country boat. The suggestion made by learned counsel for the accused has been denied by him.
iii) PW.3-Padmaraju is the elder brother of the deceased. According to his evidence, Dyavappa, the brother of the accused used to visit the house of his sister and the brother of the accused were having good relationship about two years prior to recording the evidence. His sister was found missing and his father gave a complaint. The Police enquired Dyavappa and later enquired the accused and then the accused went and showed the place where his sister's body was buried. The Police exhumed the dead body and he has also identified the dead body of his sister. Though in the cross- examination, learned counsel for the accused tried to impeach his evidence, but nothing has been elicited in respect of the relationship of the deceased with the brother of the accused and on recovery of the dead body, he identified the dead body of the deceased.
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iv) PW.4-Narayanappa has stated that he knew the deceased and the brother of the accused. The deceased and Dyavappa were having affair between them and he came to know that the accused committed murder of the deceased, but he says that he do not know as to who committed the murder. He has been treated hostile by the prosecution and in the cross-examination, he has admitted that he came to know that the deceased was found missing, a complaint came to be filed by her father. The Police secured the presence of the accused to the Police Station on 13.10.2013. Later, the accused took the Police to the forest area and showed the dead body. However, he has stated that he has not accompanied the Police to the spot. Further, he has stated that he came to know through the villagers that the accused committed the murder. In the cross-examination by learned counsel for the accused, he has stated that he has visited the spot and he came to know about the murder through public. His evidence is acceptable only in respect of the relationship of the deceased with the brother of the accused and the 20 remaining evidence is hearsay evidence in respect of the commission of the murder. Admittedly, there is no eyewitness to the incident.
v) PW.5-Chandra is the boatman. According to his evidence, the Police, Tahsildar, the villagers and the accused crossed the river through his boat and later, the accused showed the spot where he has buried the dead body of the deceased. He has also identified the photographs as per Ex.P.5. However, in the cross- examination, he has admitted that PW.1 is his uncle and the deceased was his daughter-in-law. Further, he has admitted in the cross-examination that after crossing the river, he stayed back in his boat and did not go the spot. Therefore, the evidence of this witness is acceptable only for the purpose of the accused, Police and Tahsildar crossing the river with the help of his boat.
vi) PW.6-Mahadeva was supposed to speak about the illicit relationship between the brother of the accused and the deceased. But he has turned hostile. However, he has stated that he came to know that the accused 21 committed the murder of the deceased. His evidence is only hearsay evidence which is not acceptable and his evidence is not useful to the case of the prosecution.
vii) PW.7-Iranaika is one of the witnesses who participated in the exhumation of the body of the deceased in the presence of the Tahsildar on 13.10.2013. He has also stated that he along with others went to the place where the accused buried the dead body of the deceased, and then the body was exhumed and identified the photographs at Exs.P.5 and P.7. In the cross-examination, he has stated that the Police visited the spot before he visited the spot. He further says that the accused and the Police traveled in the earlier boat and he traveled in another boat. He has also stated that he has signed the panchanama and denied the suggestion made by learned counsel for the accused for having witnessed the inquest proceedings.
viii) PW.8-Dharmappa is also panch witness to Ex.P.9, the recovery mahazar. He recovered MO.1-stone, MO.2- footwear and identified his signature at Ex.P.15 and 22 photographs as per Exs.P.2 to 5. He further says that his photograph is also depicted in the Videograph. He further says that later, the accused lead them to the place where the dead body was buried and Ex.P.10-spot mahazar was marked. He identified photographs Exs.P.2 to P.4. He further says, later the accused took them to his house and gave the anklets which was seized under the panchanama and he identified MO.3 as anklet. During the cross- examination nothing has been elicited to disbelieve his evidence in respect of recovery of MOs.1 to 3 in his presence and also recovery of the dead body at the instance of the accused.
ix) PW.9-Nanjundappa, Range Forest Officer gave evidence that at the request of the Police, he gave Ex.P.14-RTC extract showing that the land from where the dead body was exhumed belonged to the Forest Department. He also gave Google maps as per Exs.P.15 and 16. Nothing has been elicited in the cross- examination of this witness to disbelieve that the land in question comes within the forest land.
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x) PW.10-Dinesh is the Assistant Engineer who prepared the sketch as per Exs.P.17 and P.18. Except denial, nothing has been elicited.
xi) PW.11-Dr.Pradeepkumar conducted autopsy on the dead body of the deceased between 2.30 and 6.30 p.m. Accordingly, the Police and the Tahsildar summoned him to the spot and handed over the dead body to him between 4.30 and 4.45 p.m. Thereafter, he conducted the Post-Mortem examination and according to his evidence, he found fracture injury on the left side of her skull and the injury was measuring 6 x 4 inches and the dead body was in a decomposed stage and he was unable to examine other parts of the body. According to his opinion, the head injury was ante-mortem in nature and he issued the Post- Mortem Report as per Ex.P.19. However, he has given opinion after examining MO.1-stone that the injury found on the dead body of the deceased can be caused if a person is assaulted with that stone. Though he has stated in the cross-examination the time since the death of the deceased at the time of his Post-Mortem examination but 24 denied the suggestions that the death was more than 25 to 30 days prior to the examination. He further denied suggestion that the injury mentioned in his Post-Mortem Report can be caused to a person due to accident fall.
xii) PW.12-Tahsildar conducted the inquest on the dead body of the deceased after exhumation of the dead body of the deceased in his presence by the Police with the help of the villagers and according to his evidence, at the request of the Police, he along with the Police and the accused went to the spot on 13.10.2013 and the accused showed the spot and the body was exhumed. Then he conducted the inquest panchanama and during the inquest, the Police took Video and he has identified the inquest panchanama as per Ex.P.6 and identified Ex.P.5 photograph of the deceased. In the cross-examination nothing has been elicited by learned counsel for the accused to disbelieve his evidence. He has denied the suggestions made by learned counsel for the accused.
xiii) PW.13-Pushpa, PSI received the complaint from PW.1 in Crime No.75/2013 and started investigation on 25 10.10.2013. She secured the presence of panchas. She came to know that the said Dyavappa had illicit relationship with the deceased. At the time of enquiry, he has revealed that the accused who is his brother was nurturing enmity between them. Then on 13.10.2013, she secured the presence of the accused to the Police Station. The accused confessed before her. At that time, PW.1- father of the deceased was also present. The father of the deceased gave complaint to her as per Ex.P.1. On the basis of the complaint, she registered the case in Crime No.75/2013 and issued FIR as per Ex.P.20. Further, she deposed that when she enquired with the accused, the accused gave voluntary statement and in the voluntary statement, the accused has stated that he will also show the spot where the dead body of the deceased was buried, the stone used by him for assaulting the deceased and also produce the anklets of the deceased kept in his house. The relevant portion of the voluntary statement of the accused was identified by this witness as per Ex.P.21 and also identified the signature of the accused as Ex.P.21(a) 26 and her signature Ex.P.21(b). Then she handed over the further investigation to PW.14. During the cross- examination, learned counsel for the accused denied the statement made by the accused as per Ex.P.21 and the same was created by the Police for falsely implicating the accused in this case. Though she has admitted that PW.1 has not stated in the missing complaint about the clothes worn by the deceased, but further adduced that she has not tried to investigate as to whether the deceased had previous love affair with some one. Except the suggestion, nothing has been elicited in her evidence. However, in respect of the legal aspect, recovery of the incriminating articles and the recovery of the dead body will be discussed in detail a little later.
xiv) PW.14-H.N.Honnappa, PSI who took up the further investigation from PW.13, verified the voluntary statement of the accused, interrogated the accused and called the Tahsildar as well as the Doctor and then he accompanied the accused and other witnesses to the forest area by crossing the Sharavathi River and the accused 27 showed the spot where the dead body was buried. Then in the presence of panchas, he prepared Ex.P.10- panchanama, prepared rough sketch as per Ex.P.22. The Tahsildar with the help of the villagers exhumed the dead body and after conducting inquest proceeding, the body was given to the doctor for post-mortem examination. He has Videographed the entire episode and identified Exs.P.5 and 7, the photographs of the deceased. He recovered the stone and the footwear of the deceased at the instance of the accused as per MOs.1 and 2. Further, he says that the accused also took them to his house and gave the anklets of the deceased. He prepared the panchanama and recovered the same under Ex.P.11 and he also prepared rough hand sketch as per Ex.P.24 and also taken Videograph and the photograph as per Ex.P.12. She identified the CD as MO.4, then recorded the statement of the witnesses and after obtaining the Post-Mortem Report and the opinion of the doctor, filed the charge sheet. 28
14. On perusal of the entire evidence on record both oral and documentary and the material objects placed on record by the prosecution, as held above, the entire prosecution case rests upon the circumstantial evidence and there is no eyewitness to the incident.
(i) MOTIVE
15. The first circumstance relied upon by the prosecution is the motive for commission of the murder. PW.1, the father of the victim has stated that Dyavappa, the brother of the accused had intimacy with his daughter and the said Dyavappa used to visit his daughter's house frequently and used to help her. This aspect has also been spoken to by PW.3, the brother of the deceased, PW.4, an independent witness and PW.6, even though he has turned hostile regarding the intimacy between the accused and the deceased and he was a hearsay witness. The case of the prosecution is that the accused being the brother of Dyavappa used to blame Dyavappa and the deceased saying that the deceased spoiled the reputation of his 29 family. The brother of the accused used to spend all the earnings to the deceased and was not looking after the three unmarried sisters and no one came forward to have alliance with his family. Therefore, the accused was having grudge against the deceased. However, the prosecution not examined Dyavappa, the brother of the accused. It is not in dispute that the accused is an unmarried person and he is also having three younger unmarried sisters and the relationship of the deceased with his brother is not in dispute. The accused also not seriously disputed the allegation made against him in respect of nurturing enmity and opposing the intimacy of his brother with deceased. Therefore, from the evidence of PWs.1, 3 and 4, the prosecution has established the motive aspect for the commission of the offence by the accused.
16. As regards the main circumstance relied upon by the prosecution is, recovery. There are three recoveries namely;
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i) Recovery of the dead body of the deceased at the instance of the accused.
ii) Recovery of the MO.1-stone at the instance of the accused.
iii) Recovery of MO.3-silver anklets of the deceased from the house of the accused.
17. As regards the recovery of the dead body of the deceased as well as MOs.1 to 3, the evidence of the Investigating Officer is very much relevant. It is the case of the prosecution that it is not in dispute that the daughter of PW.1 was found missing from 04.10.2013 onwards when she went to Coolie work in the APMC yard. After searching for her by PW.1 and his family members, PW.1 lodged a missing complaint to the Police on 07.10.2013. PW.1 suspected that Dyavappa who is the elder brother of the accused might have committed something to his daughter as he was having frequent visit to his daughter's house. During enquiry of the missing complaint, the Investigating Officer PW.13-Pushpa, 31 secured the presence of Dyavappa to the Police Station on 10.10.2013. While enquiring with the said Dyavappa, he has whispered that his elder brother i.e. the accused was nurturing enmity towards him and the deceased as he was having intimacy with her. Thereafter, the Investigating Officer secured the presence of the accused on 13.10.2013. On enquiry with the accused, the accused confessed before the Investigating Officer that he has quarreled with the deceased in the forest area and during the quarrel, he pushed her and she fell down and sustained injury. Then, he took up the stone and hit on her head and caused her death. Later, he buried the dead body in the forest area. When the accused was making confession statement during the enquiry of the missing complaint, PW.1-father of the deceased was also present in the Police Station. Immediately, PW.1 lodged the complaint against the accused as per Ex.P.1. Immediately, the complaint was received and FIR was registered by PW.13-Investigating Officer. The case was registered in Crime No.75/2013 as per Ex.P.20. Then she recorded the 32 voluntary statement of the accused in writing. The accused confessed the entire episode of killing the deceased and has given statement that he will show the place of occurrence and produced the stone and anklets of the deceased and also showed the place where he has buried the dead body of the deceased. The Investigating Officer identified the relevant portion of the disclosure statement of the accused as Ex.P.21. Then she handed over the investigation to PW.14 and PW.14 took up the further investigation and secured the panchas. As for the legal aspect of Section 27 of I.E. Act, it will be discussed a little later while discussing the validity of the recovery.
18. Further, as per the evidence of the Investigating Officer-PW.14, he has secured the panchas along with photographer. The family members of the deceased accompanied the Police team and the Investigating Officer also requested the Tahsildar to come over to the spot for holding inquest panchanama on the dead body of the deceased, at the same time, he also requested the doctor 33 to visit the spot for conducting the Post-mortem Examination. The Investigating Officer along with the witnesses and the accused went to the forest area. They crossed the river in a country boat. When they went to the other side of the river, the accused took them to the interior place and showed the place where he has buried the dead body. Then the Investigating Officer prepared the spot panchanama as per Ex.P.10 and also prepared Ex.P.22-rough sketch. Then in the presence of the Taluk Executive Magistrate, the dead body was exhumed with the help of the villagers. The inquest panchanama was prepared by the Taluk Executive Magistrate as per Ex.P.6. Then the photographs of the dead body were also taken as per Exs.P.5 and 7. The exhumation was Videographed by the photographer and he has identified the video CD as MO.4. The evidence of PW.13-Investigating Officer corroborated by the evidence of PW.12, the Taluk Executive Magistrate/Tahsildar who conducted the inquest panchanama on the dead body of the deceased. He has also categorically stated that he exhumed the dead body of 34 the deceased after the accused showed the spot and he identified the inquest panchanama as per Ex.P.6. The photographs of the deceased were also identified by him as Exs.P.5 and P.7. Nothing has been elicited by the counsel for the accused in the cross-examination of these two witnesses in respect of exhumation of the dead body of the deceased from the spot shown by the accused.
19. Further, the evidence of the prosecution reveals that apart from PWs.12 and 14, the panch witnesses PW.2- Bhogaraju and PW.8-Dharmappa have also supported the prosecution case in respect of the inquest panchanama prepared by the Tahsildar on the dead body after its exhumation. He identified his signature in Ex.P.10 as per Ex.P.10(a). He also identified the photograph of the dead body as per Exs.P.5 and P.7. PW.7-Iranaika another panch witness also supported the case regarding recovery of the dead body after exhumation and the place shown by the accused and identified Exs.P.5 and P.7 as the photographs of the dead body. The evidence of PW.1- 35 father of the deceased and PW.3-brother of the deceased have also witnessed the recovery of the dead body and supported the case of the prosecution regarding recovery of the dead body. The oral evidence of PWs.1, 2, 3, 7, 8, 12 and 14 corroborates with Ex.P.10-panchanama, photographs Exs.P.5 and P.7, the inquest panchanama prepared by the Tahsildar as per Ex.P.6 and MO.4-CD in respect of the recovery of the dead body at the instance of the disclosure statement of the accused and the voluntary statement made by him as per Ex.P.21, which is admissible under Section 27 of the I.E. Act. Learned counsel for the accused also not disputed the recovery of the dead body by the Investigating Officer and the inquest panchanama prepared by the Tahsildar on the dead body of the deceased after exhumation in the presence of these panch witnesses, but the learned counsel disputed the very voluntary statement made by the accused and recovery under Section 27 of the I.E. Act is inadmissible. But from the evidence of PWs.1, 2, 3, 7, 8, 10 and 12 and Exs.P.5, 6, 7 and 10, the prosecution is successful in proving the 36 recovery of the dead body of the deceased at the instance of the accused.
(ii) RECOVERY OF M.Os.1 AND 2
20. As regards the second recovery i.e. MO.1-stone alleged to have been used by the accused for hitting on the head of the deceased and the M.O.2-footwear of the deceased were found on the spot. PW.14-Investigating Officer has deposed that after the recovery of the dead body and after holding inquest and Post-mortem examination, the accused also took them to show the spot where he has actually assaulted the deceased, which is also in the forest area. The accused showed the spot and the Investigating Officer prepared the panchanama as per Ex.P.9 and the accused took out the stone and handed over the same to the Investigating Officer. The same was seized and identified by him as MO.1. There was footwear of the deceased and the same was also seized by the Investigating Officer which was marked as M.O.2 and the photographs were also taken. The same were marked as 37 Exs.P.2 to P.4. The evidence of the Investigating Officer was also supported by PWs.1 and 3 and PW.8-independent panch witness. He has identified MOs.1 and 2, the panchanama as per Ex.P.9 and the photographs regarding seizure of MOs.1 and 2 as per Exs.P.2 to 4. Nothing has been elicited by the counsel for the accused to discard the evidence of this witness in respect of the recovery of MOs.1 and 2 on the voluntary statement made by the accused. Even the MO.4-CD also depicts the recovery made by the Police at the instance of the accused. Thereby, the prosecution is successful in proving the recovery of MO.1-stone used by the accused for the commission of offence by assaulting the deceased and M.O.2-footwear of the deceased were recovered from the place of occurrence in the forest area.
21. Learned counsel seriously disputed the recovery of MO.1-stone on the ground that the recovery cannot be considered as seized from the hidden place as it was seized from the open place, which is accessible to the 38 public. But the evidence of the witnesses on record depicts that M.Os.1 and 2 were recovered from the spot. Learned counsel for the accused has not at all elicited in the cross-examination that the said place where MOs.1, and 2 were recovered was a public place which is accessible to the general public. On the other hand, it is a reserved forest area as per the evidence of PW.9-the Range Forest Officer who has given the RTC extract as per Ex.P.14 and Google Maps as per Exs.P.15, P.16. He has stated that the place where the stone was recovered and the dead body was buried is the forest area belonging to the Forest Department. Except the suggestion in the cross-examination of PW.9, nothing has been elicited either in the evidence of PW.9 or in the evidence of PW.14 that the said palace is accessible to the general public, on the other hand it is a lonely place in the interior part of the forest area which cannot be considered as the place accessible to the public. Therefore, the place from where MOs.1 and 2 were recovered is neither known to the public nor the Police. Therefore, the contention of learned 39 counsel for the accused that the recovery of MO.1 is not acceptable and is not in accordance with Section 27 of the I.E. Act, holds no water.
22. Apart from those witnesses and as per the evidence of PW.5-Chandra, a boat man has deposed that the Police team and the accused crossed the river in his boat. He has spoken about the recovery of body of the deceased, which further strengthens the prosecution story.
(iii) RECOVERY OF M.O.3-ANKLETS OF THE
DECEASED
23. As regards recovery of MO.3-anklets of the deceased from the house of the accused at his instance, the evidence of PWs.1, 3 and 8 and inquest panch witness and the evidence of the Investigating Officer-PW.14 goes to show that after the recovery of MOs.1 and 2 and the dead body, the accused took them to his house and produced the anklets of the deceased and then the Police recovered the same by preparing the panchanama as per Ex.P.11. He also prepared the rough sketch as per Ex.P.24 and also 40 took the videograph and photos. He has identified the photographs as per Ex.P.12. He also identified MO.3- anklets. The evidence of PW.14 is corroborated by the evidence of PW.8-panch witness. He has also clearly stated that the accused produced MO.3-anklets of the deceased from his house. Nothing has been elicited by learned counsel for the accused in the cross-examination to disbelieve his evidence. Except the suggestions and denials, nothing has been elicited to disprove the evidence of PW.8, the independent witness who acted as a panch witness while recovering MO.3-anklets. Thereby, the prosecution is successful in proving the recovery of MO.3- anklets as per the disclosure statement made by the accused, is admissible under Section 27 of the I.E. Act.
(iv) HOMICIDAL DEATH
24. The next circumstance relied upon by the prosecution is the homicidal death of the deceased. In order to prove the circumstance of homicidal death, the prosecution relied upon the evidence of PW.11- 41 Dr.Pradeepkumar. According to his evidence, at the request of Police, he visited the forest area adjacent to Chamballi village and at the request of the Police, he conducted the Post-Mortem examination on the dead body of the deceased. On examination, he found that there was a fracture injury above the left ear on the head measuring 6 x 4 inches. The dead body was in a decomposed stage. Further, he has stated that at the request of the Police, he examined the stone which was sent by the Investigation Officer and after examining MO.1-stone, he has given opinion that the injury found on the dead body of the deceased may be caused by MO.1. He identified the Post- Mortem examination Ex.P.19 and MO.1-stone. According to his evidence, the other parts of the body could not be examined due to its decomposed stage. He also stated that due to the head injury, there was loss of blood. On perusal of Ex.P.19-Post Mortem Report, it corroborates his evidence and according to his opinion, the death may be due to head injury. During the cross-examination, the counsel for the accused tried to elicit that death has 42 occurred 25 to 30 days prior to the exhumation which was denied by him and the injury found on the head of the deceased may be caused when a person falls down from a height. The same was also denied by him.
25. On perusal of the evidence of this witness PW.11, Ex.P.19-Post-Mortem Examination Report, evidence of PW.12-Tahsildar who conducted the inquest panchanama, the evidence of PW.14-Investigating Officer and evidence of PWs.7 and 8-Panchas, it is clear that the body was exhumed and during the inquest panchanama, the Tahsildar and the witnesses PWs.7, 8 and 14 found the head injury, fracture of the frontal bone of the deceased. As per the evidence of PW.11, the death must have been caused due to the head injury which clearly shows that the deceased must have died due to the head injury which is a homicidal death. It is not the case of the accused that the deceased fell down and sustained accidental injury, but the dead body was found buried in a lonely place. The accused was not able to show that the death of the 43 deceased was not caused due to head injury or for some other reasons. From the evidence on the record, the prosecution is successful in proving the death of the deceased is a homicidal death. Thereby, the prosecution is successful in proving the circumstances of homicidal death of the deceased.
26. Learned counsel for the accused contended that at the time of recording the voluntary statement of the accused, he was not in the custody of the Police. He was not arrested by the Investigating Officer at the time of recording voluntary statement as per Ex.P.21, but on perusal of the evidence of PW.13-PSI, who arrested the accused, on 07.10.2013 at 1.50 p.m., PW.1 gave a missing complaint stating that his daughter was found missing and the case in Crime No.73/2013 came to be registered. During the enquiry of the missing complaint on 10.10.2013, she has secured the presence of the elder brother of the accused i.e., Dyavappa and she came to know that the said Dyavappa was having illicit relationship 44 with the deceased. During the course of enquiry of Dyavappa, he has revealed that the accused was nurturing enmity against the deceased. Then on 13.10.2013, she secured the presence of the accused and enquired. During the enquiry, the accused made a confession that he picked up a quarrel with the deceased and assaulted her and killed her. At that time, PW.1 was present in the Police Station. Immediately, on the information given by the accused, PW.1 lodged the complaint against the accused and the complaint was marked as Ex.P.1 and the Police registered the case in Crime No.75/2013 and issued FIR as per Ex.P.20. During interrogation, the accused gave voluntary statement. She recorded the same as per Ex.P.21 and obtained his signature. Thereafter, she handed over the investigation to PW.14. There is no much cross-examination in the evidence of PW.13 in respect of the arrest of the accused, except the denial that the accused has not given any voluntary statement. 45
27. On perusal of the evidence of PW.13, she has not categorically stated that the accused was arrested prior to the recording of his voluntary statement or subsequent to recording of the voluntary statement, but on perusal of the evidence of PW.13, it clearly reveals that the accused was enquired by PW.13. The accused made a confession. Immediately, PW.1 lodged the complaint and FIR came to be registered in Crime No.75/2013 and thereafter, PW.13 recorded the voluntary statement of the accused and the accused stated that he will show the spot where he has assaulted the deceased and buried and also produced the stone as well as the anklets of the deceased. The relevant portion of the disclosure statement has been marked as Ex.P.21. On perusal of the Trial Court record, it shows that Ex.P.20 has been registered by PW.13 for the offences punishable under Section 302 and 201 of IPC based upon the complaint made by PW.1 as per Ex.P.1. PW.1 gave the complaint based upon the confession made by the accused. After registering the case by the Investigating Officer, sent the FIR to the Court at 10.30 a.m. 46 Thereafter, the arrest was made. The arrest memo is also available in the Trial Court record which shows that at 10.30 a.m. the Police arrested the accused in Crime No.75/2013 and intimation was given to one Chandrahasa through telephone regarding the arrest of the accused. The Investigating Officer also sent the remand application to the Court and after registering the case, the accused was arrested. Thereafter, recorded the voluntary statement and then, they made all the recoveries. Thereafter, the accused was produced before the Court, which clearly shows that the voluntary statement of the accused as per Ex.P.21 has been recorded by the Investigating Officer only for registering the case after the arrest of the accused and at the time of recording the voluntary statement in writing by the Investigating Officer, the accused was in custody and he was already arrested by the Police. Therefore, the contention raised by the learned counsel for the accused contending that at the time of recording the voluntary statement Ex.P.21 and during recovery of MOs.1 to 3 and the dead body, the 47 accused was not in custody and he was not arrested by the Police is not correct. The documents Exs.P.1 and P.20 clearly go to show that PW.1 while giving information on the missing complaint during the course of enquiry in Crime No.73/2013, the accused gave confession which was considered as the first information and came to know by PW.1 and on the basis of the information, he lodged the complaint to the Police and after registering the case in Crime No.75/2013, the PW.13 arrested the accused and recorded the voluntary statement as per Ex.P.21. Therefore, we hold that the accused failed to show that the voluntary statement was recorded prior to his arrest and recovery made without arrest cannot be acceptable.
28. On perusal of the entire record, which clearly goes to show whatever the confession made by the accused cannot be used against the accused which is inadmissible under Sections 25 and 26 of the I.E. Act and the relevant portion of the voluntary statement leading to the recovery is admissible under Section 27 of the I.E. Act. Here in this 48 case, the accused was making confession and based upon the confession, PW.1 lodged the complaint and the recovery of the dead body, MO.1-stone, MO.2-footwer, MO.3-anklets were all proved as recovered at the instance of the accused based upon the disclosure statement which is admissible under Section 27 of the I.E. Act.
29. Learned counsel relied upon the judgment in the case of Pulukuri Kottayya and others vs. The King Emperor reported in Privy Council 1946 page 258. The Hon'ble Apex Court in the case of Prabhoo vs. State of Uttar Pradesh reported in (1963)2 SCR 881, relied upon the judgment of the Privy Council stated supra and has held as under:
"9. The main difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained shirt and dhoti is not very satisfactory and the courts below were wrong in admitting certain statements alleged to have been made by the appellant in connection with that recovery. According to the recovery memo the two witnesses who were present when the aforesaid 49 articles were produced by the appellant were Lal Bahadur Singh and Wali Mohammad. Lal Bahadur Singh was examined as prosecution witness No. 4. He did give evidence about the production of blood stained articles from his house by the appellant. The witness said that the appellant produced the articles from a tub on the eastern side of the house. The witness did not, however, say that the appellant made any statements relating to the recovery. Wali Mohammad was not examined at all. One other witness Dodi Baksh Singh was examined as prosecution witness No. 3. This witness said that a little before the recovery the Sub-Inspector of Police took the appellant into custody and interrogated him; then the appellant gave out that the axe with which the murder had been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them. These statements to which Dobi Baksh (P.W. 3) deposed were not admissible in evidence. They were incriminating statements made to a police officer and were hit by SS. 25 and 26 of the Indian Evidence Act. The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of S. 27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him was a statement which led to any 50 discovery within meaning of S. 27. Section 27 provides that when any fact is deposed to and discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovery may be proved. In Pulukuri Kotayya v. King Emperor [(1946-47) 74 IA 65] the Privy Council considered the true interpretation of S. 27 and said :
"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the information to his knowledge, and if the knife is proved to 51 have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A.', these words are inadmissible since they do not related to the discovery of the knife in the house of the informant." (p. 77)"
30. In the case of Jaffar Hussain Dastagir vs. State of Maharashtra reported in 1969(2) SCC 872, the Hon'ble Apex Court at paragraph 11 has held as under:
" 11. In our view Gaud must have learnt that Parekh and/or accused No. 3 had the custody of the diamonds. Therefore the statement of the appellant that accused No. 3 had the custody of the diamonds would not be something unknown to the police so as to constitute "a fact deposed to as discovered in consequence of the information received" from the appellant. The discovery, if any, merely related to the whereabouts of accused No.
3. There was no discovery of any fact deposed to by the appellant within the meaning of Section 27. If the police had not gone to the office of the Bombay Samachar and had not learnt of the complicity of the third accused with the crime, the statement of the appellant would amount to information received from him relating to the 52 discovery of the diamonds in the custody of accused No. 3."
31. The Hon'ble Apex Court in the case of Sakharam Shankar Bansode vs. State of Maharashtra reported in 1995 SCC (Cri) 505, at paragraph 4 has held as under:
"4. It is well-settled now that a retracted extra- judicial confession, though a piece of evidence on which reliance can be placed, but the same has to be corroborated by independent evidence. That apart, the court must be satisfied that the confession alleged to have been made to P.W-11 was true and voluntary one and in judging the same, the conduct of P.W-11 and the circumstances which impelled the accused to make such a statement to P.W-11 should be above suspicion. P.W-11 deposed that he and the accused studied together some years ago and thereafter they left the school and P.W-11 was working as a labourer. P.W- 11 further admitted that 7 or 8 years back, the accused and the father left the village and two years prior to this occurrence he met him and during the period, the accused did not even visit his house. P.W-11 further admitted that he did not inform anybody and he did not even think of informing the police even after coming to know that the accused committed the murder.53
Though he has stated that he informed his mother but no statement of the mother has been recorded as such. P.W-11 further deposed that on May 8, 1977, the accused was living in the village on which date he was arrested. But he has not stated so before the police. This conduct of P.W-11 throws any amount of suspicion on his veracity. Unless we are satisfied that the extra-judicial confession itself is true, voluntary and reliable we cannot proceed further to examine whether there is any other independent corroboration evidence. There are many suspicious features in the evidence of P.W-
11. It becomes highly doubtful as to why the accused should cover such a long distance and go all the way to P.W-11 to confess his crime and then immediately leave his house. This is a retracted extra judicial confession which is the sole basis on which both the courts have relied and based the conviction. We are not satisfied with the evidence of P.W-11 and his conduct also throws any amount of doubt about the truthfulness and the version given by him. If P.W-11's evidence becomes unreliable, then there is no other circumstance to connect the accused with the crime. In the result, the appellant is given benefit of doubt and the conviction and sentence awarded against him are set aside. The appeal is accordingly allowed."54
32. The Hon'ble Apex Court in the case of Wakkar and another vs. State of Uttar Pradesh reported in (2011)1 SCC (Cri) 846, at paragraph 26 has held as follows:
" 26. It is true that recovery of certain incriminating articles at the instance of the accused under Section 27 of the Evidence Act by itself cannot form the basis of conviction. The recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well and the chain of events suggesting the involvement of the accused. The trial Court as well as the appellate Court did not rest the conviction of the appellants solely based on the recoveries. The fact remains that the recovery of articles used in the commission of offence has been taken into consideration together with other incriminating circumstances brought on record by the prosecution."
33. On a careful perusal of the principles laid down by the Hon'ble Apex Court in the cases stated supra and the principle laid down by the Privy Council in Pulukuri Kottayya case (supra), there is no second thought in respect of the principles laid down in the aforesaid 55 judgments with regard to the confession statement made by the accused before the Investigating Officer is inadmissible except the recovery based on the disclosure statement under Section 27 of the I.E. Act. As already held above, when the accused gave a voluntary statement before PW.13 as per Ex.P.21, he was already in the custody of the Police and he has been arrested by the Police in Crime No.75/2013. Thereafter, PW.13 handed over the investigation to PW.14, then PW.14 along with the accused went to the forest area as lead by the accused, and discovery of the dead body of the deceased Seethamma was made. PW.12-Tahsildar exhumed the dead body and after the inquest panchanama, the body was handed over to PW.11-Dr.Pradeepkumar for conducting Post-Mortem Examination. Thereafter, the accused took them to the spot where he assaulted the deceased and then the panchanama was prepared. The accused also gave MO.1-stone and MO.2-footwear which were also seized under the panchanama. Thereafter the accused lead the Police team along with the panchas to his 56 house and gave MO.3, the anklets of the deceased. Thereby, the prosecution is successful in proving the recovery of MOs.1 to 3, the dead body of the deceased at the instance of the accused. As we have already held above, the recovery of MOs.1 and 2 are also in the forest area which is not accessible to the public. The recovery of the dead body of the deceased which was also buried in the forest area was in the exclusive knowledge of the accused. Therefore, the judgment relied upon by learned counsel for the accused is not useful to him to discard the evidence of the prosecution witnesses and recovery of the material objects belonging to the deceased as well as the dead body of the deceased. In the evidence of PW.12- Taluk Executive Magistrate, he has stated the reference 1210/2013; as per the order of his superior Assistant Commissioner of Sagar Sub-division, he went to the spot which cannot be said that the Police were having previous knowledge about the dead body of the deceased buried in the forest area and in the cross-examination, it was not elicited whether 1210/2013 is reference number or it was 57 a date. But it is not a date and it may be a reference number. Apart from that, the very request letter of the Investigating Officer which is available on record shows that the requisition is given to the Assistant Commissioner on 13.10.2013 and the same was received on 13.10.2013. Therefore, the contention of the learned counsel is not acceptable.
34. As we have already stated supra, the accused first made a confession before PW.13 regarding assaulting the deceased and burying the dead body of the deceased. Though the confession statement is inadmissible in evidence if it is made before the Investigating officer during investigation while in custody, but the confession statement made before PW.1 as well as PW.13 was used by the Police and PW.1, as information for the purpose of lodging the complaint and registering the case against the accused, which is permissible.
35. In the case of Faddi vs. The State of Madhya Pradesh reported in 1964 AIR 1850 the Hon'ble Apex Court has held as under:
58
"When the person lodging the FIR is subsequently accused of the offence, it is an admission of certain facts which have a bearing on the question to be determined by the Court. Not being a confession, nor a statement made to a Police Officer in the course of investigation, its admissibility is not barred either by Section 25 or Section 162 of Cr.P.C."
36. In the case of Phillips vs. State of Karnataka reported in 1980 Crl.L.J 171 (Kant), the Co-ordinate Bench of this Court has held as under:
"In the case of information given by the accused is confessional in character, it has to be looked into to decide whether any part of it would be admissible as first information setting the criminal law in motion."
In view of the principles laid down in the above said cases and the case in hand came to be registered based upon the information given by the accused in the presence of the PW.1 and PW.13, while enquiring on the missing complaint, the accused gave some information about the fact of death of Seethamma and based upon the said 59 information the FIR came to be registered in Crime No.75/2013, which is admissible.
37. The entire voluntary statement recorded as per Ex.P.21 was only after registering the case and arresting of the accused. The entire recovery proceeding has been Videographed as per MO.4-CD apart from the panchanama in support of the panch witnesses. Therefore, the contention of the learned counsel for the accused that the Police had previous knowledge prior to the voluntary statement made by the accused is not acceptable.
38. On conclusion, the entire evidence of the prosecution witnesses goes to show that all the circumstances relied upon by the prosecution i.e. Motive, homicidal death, the recovery of the dead body and recovery of MOs.1 to 3 were proved and the chain link is consistently connected with each other without any hypothesis that the accused alone and none else than the accused was the cause for the death of the deceased Seethamma. After causing the death of the deceased, the accused buried the dead body 60 in the forest area in order to cause disappearance of the evidence which attracts Section 201 of IPC. The MO.4-CD was also viewed by us in the open Court in the presence of learned counsel for the accused and learned Additional State Public Prosecutor regarding the recovery made by the Police. Learned counsel for the accused fairly submits that he has no dispute regarding recovery of the MOs.1 to 3 and the dead body of the deceased at the instance of the accused, but he disputes only the validity of recovery under Section 27 of I.E. Act which is not accepted by us for the reasons already stated supra.
39. In view of the above findings, now it is required to consider whether the act of the accused causing the death of the deceased amounts to culpable homicide which amounts to murder or not. The accused has stated in the confession statement prior to registering of the case during enquiry on the missing complaint that he pushed the deceased and she fell down and her head came in contact with a stone and sustained injury. Then, he took up the 61 stone and hit on the head of the deceased and caused her death. There is only one head injury in the Post-Mortem Examination Report as well as in the evidence of PW.11 measuring 6 x 4 inches on the parietal region of the head and the accused assaulted the deceased by picking up quarrel as his brother had illicit relationship with her and not looking after his unmarried sisters. It shows that in a spur of the moment without any pre-meditation during the quarrel the accused has pushed the deceased and she fell down and sustained injury on her head due to her head coming in contact with a stone and died. Therefore, the alternative argument addressed by learned counsel for the accused regarding the offence falls under Section 304 Part II of IPC is acceptable one.
40. Though we found the accused guilty for the offence punishable under Section 304 Part II of IPC, however, the Trial has Court held the accused guilty for the offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life till his death, but the 62 punishment prescribed is death or imprisonment of life and the death punishment shall be imposed only in rarest of rare cases. While imposing imprisonment for life, the Trial Court shall not restrict the power of the State for providing any remission in the sentence as provided under Sections 432 and 433 of Cr.P.C. and the life sentence shall not be imposed till the death of the accused and no such power is vested with the Sessions Judges. The Hon'ble Apex Court also in a catena of decisions has held that life sentence means remaining part of life of the accused. However, the power of the State cannot be restricted by the Sessions Judges for providing remission by the State. A co-ordinate Bench of this Court after relying upon the judgment of the Hon'ble Apex Court in the case of Union of India vs. Sriharan @ Murugan and others reported in (2016) 7 SCC 1 rendered judgment in Ranjith K vs. State of Karnataka by Mico Layout Police reported in 2019 (2) KCCR 1769 (DB) at paragraph 57 has held as follows:
" 57. Therefore, from the above understanding of legal aspects, it is crystal clear that the power 63 which is vested with the President of India, His Excellency Governor of the State and also the appropriate Governments under Article 72, 161 of the Constitution of India and as well as u/s. 432, 433, 433A, 434 and 435 of the Cr.PC., cannot be in any manner restricted or curtailed to by the Sessions Judges, but they are only empowered to inflict the punishment recognized under IPC i.e., u/s.302 of IPC, i.e., the life imprisonment or the death sentence, except those two penalties, learned Sessions Judges have no power to inflict any punishment in between the above said two punishments. It is only the powers vested with the High court and the Supreme court which derive the powers from the Constitution as these courts are the constitutional courts of India. Therefore, the trial court has committed a legal error in imposing punishment with such direction to the Government as noted above."
41. In view of the above, the punishment imposed by the Trial Court for life and he shall remain in prison till his death is an error which is not sustainable under the law and there is no power for the Sessions Judges to impose such punishment extending the life sentence except the Hon'ble Apex Court and the High Courts.
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42. As regards to the sentence imposed by the Trial Court for the offence punishable under Section 201 of IPC to undergo imprisonment for ten years and fine, whereas the punishment prescribed under Section 201 of IPC is if a capital offence, the punishment with imprisonment of either description which may extend to seven years and fine or if the offence is punishable with imprisonment for life then, the punishment is imprisonment which may extend to three years and fine. But here in this case, the Trial Court held the accused guilty for the offence under Section 302 of IPC and is punishable with death or imprisonment of life. Therefore, the maximum punishment for the offence under Section 201 of IPC is seven years and fine, whereas the Trial Court imposed punishment of ten years for the offence under Section 201 of IPC which is excessive than what is prescribed under Section 201 of IPC. Therefore, the same shall have to be modified and reduced.
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43. Therefore, we hold that the offence committed by the accused falls under Exception IV to the provisions of Section 300 of IPC, the culpable homicide is not amounting to murder and he is guilty for the offence under Section 304 Part II of IPC. The punishment prescribed for the offence under Section 304 Part II of IPC is imprisonment which may be extended to ten years or fine or with both. The accused is in custody for more than five years and taking into account the mitigating circumstances that he is having three unmarried younger sisters and the family background of the accused and in the peculiar facts and circumstances of the case, the accused do not deserve maximum punishment and we are inclined to impose seven years of rigorous imprisonment and to pay fine of Rs.15,000/- under Section 304 Part II of IPC and three years imprisonment with fine of Rs.5,000/- under Section 201 of IPC which will meet the ends of justice.
44. For the reasons stated above, we answer the point raised in this appeal partly in the affirmative holding that 66 the judgment of conviction and sentence passed by the Trial Court for the offences punishable under Section 302 and 201 of IPC is liable to be interfered with and modified as the offences punishable under Sections 304 Part II and 201 of IPC. Hence, the following:
Order
i) The appeal is allowed in-part.
ii) The judgment of conviction and sentence passed by the Trial Court in SC No. 31/2015 for the offences punishable under Sections 302 and 201 of IPC is hereby modified as punishable under Sections 304 Part II and 201 of IPC ;
iii) The accused is sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.15,000/- and in default of payment of fine, he shall undergo simple imprisonment for one year for the offence under Section 304 Part II of IPC;
iv) The accused is also sentenced to undergo imprisonment for three years and to pay fine of Rs.5,000/-
and in default of payment of fine, he shall under go simple 67 imprisonment for six months for the offence punishable under Section 201 of IPC;
v) Both the sentences are ordered to run concurrently.
vi) The entire fine amount of Rs.20,000/- shall be recovered and paid to PW.1, the father of the deceased as compensation under Section 357(3) of Cr.P.C.
vii) The accused/appellant is also entitled for the benefit of set off as contemplated under Section 428 of Cr.P.C.
Send a copy of this order to the Trial Court for further action.
Sd/-
JUDGE Sd/-
JUDGE mv