Karnataka High Court
Nagaraja vs State Of Karnataka on 8 December, 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08 T H DAY OF DECEMBER, 2017
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE B.A.PATIL
CRIMINAL APPEAL No. 338/2012 (C)
BETWEEN:
NAGARAJA
S/O DASAPPA
AGED ABOUT 25 YEARS
R/AT BANAKI, THRINIVE VILLAGE
HOSANAGARA TALUK
N/O AMBEDKAR COLONY
THYAGARTHI, SAGAR TALUK
...APPELLANT
(BY SMT.K.R.ROOPA, ADVOCATE)
AND:
STATE OF KARNATAKA BY
HOSANAGARA POLICE STATION
SHIMOGA DISTRICT .
...RESPONDENT
(BY SRI VIJAY KUMAR MAJAGE, ADDL.SPP)
THIS CRL.A IS FI LED UNDER SECTION 374(2) OF
CR.P.C BY THE ADVOCATE FOR THE APPELLANT
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED
TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE PASSED BY THE LEARNED
2
Crl.A.No.338/2012
SESSIONS JUDGE, I FAST TRACK COURT, SHIMOGA
DATED: 15.10.2010 IN S.C.NO.39/2010- CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S.302 OF IPC. THE APPELLANT/ ACCUSED IS
SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE
AND ALSO TO PAY A FINE OF RS.5000/- AND IN
DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO
FURTHER S.I. FOR SIX MONTHS.
Appeal reserved on: 09.09.2017;
Judgment pronounced on: 08.12.2017.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED ON 09.09.2017 FOR JUDGMENT, COMI NG
ON FOR PRONOUNCEMENT THIS DAY, K.S.MUDAGAL
J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has preferred this appeal against the order of conviction and sentence recorded against him by the Fast Track Court, Shivamogga in S.C.No.39/2010 for the offences punishable under section 302 IPC.
2. Hosanagar Police charge sheeted the appellant in Crime No.116/2009 of their Police Station for the offence punishable under Section 3 Crl.A.No.338/2012 302 of IPC which came to be registered in C.C.No.571/2009 before the JMFC, Hosanagar. The prosecution alleged that on 22.07.2009 at 6.30 a.m., in his house situated at Benaki Village Hosanagar Taluk, the accused committed the murder of his wife Geetha and mother-in-law Manjamma.
3. The prosecution case in brief is as follows:
The accused was suspecting the fidelity of his wife Geetha. During the night of the incident he picked up quarrel with Geetha suspecting her fidelity and when her mother Manjamma intervened he assaulted both of them with hammer and axe and committed their murder.
4. The sessions Court framed the charge against the accused for the offence punishable under Section 302 IPC. To substantiate its case the prosecution examined PW.1 to PW.21 and got 4 Crl.A.No.338/2012 marked Exs.P1 to P.26 and M.O.1 to M.O.24. The Sessions Court examined the accused with reference to the incriminating evidence. The Sessions Court after hearing the parties by the impugned judgment convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to imprisonment for life and fine of Rs.5,000/-.
(1) The trial Court held that the prosecution has proved the charge by the following circumstantial evidence:
i) Motive that the accused was
suspecting the fidelity of his wife
Geetha.
ii) The deceased and the accused were
last seen together.
iii) After occurrence of the crime the
accused was found leaving the village holding a plastic bag.
5 Crl.A.No.338/2012 iv) The accused has no explanation regarding the homicidal death of victims in his house. v) After the incident accused absconded. vi) Incriminating materials viz., belongings of the deceased and weapons used for committing the
offence are recovered at the instance of the accused on the basis of his voluntary statement.
vii) Though the accused set up the plea of alibi he failed to prove the same in compliance of Section 106 of IPC.
5. Smt.K.R.Roopa, learned counsel appearing for the accused seeks to assail the impugned judgment on the following grounds:
i) There are no eye-witnesses to the incident.6
Crl.A.No.338/2012
ii) The case is based on the
circumstantial evidence and
prosecution has failed to prove each circumstance beyond doubt to connect the chain of all circumstances.
iii) None of the witnesses spoke about
any overt act of the appellant/
accused.
iii) There are material contradictions in the
evidence of the witnesses.
iv) The evidence regarding seizer of the
incriminating materials is not reliable.
v) The evidence of the P.W.14 regarding sighting the accused with a plastic bag is not reliable.
vi) In the charge only the hammer is mentioned as weapon of offence. The 7 Crl.A.No.338/2012 impugned judgment says that the hammer MO.17 and axe MO.18, the Axe are the weapons of offence and thus the charge is defective. Therefore, the conviction is vitiated.
6. Sri VijayaKumar Majage, learned HCGP seeks to justify the judgment on the following grounds:
i) There is no dispute that the deaths are homicidal and have occurred in the residence of the accused himself.
ii) The accused who was staying with the victims in the same house has failed to explain the homicidal death of his wife and mother-in-law, though he is the only competent person to divulge the same.
iii) The accused neither proved his plea
of alibi nor set up the same in his
8
Crl.A.No.338/2012
examination under section 313 of
C.R.P.C.
iv) The circumstances of motive, last
seen together, sighting the accused immediately after the offence when he was parting from the village and recovery of the incriminating materials at his instance are proved by natural and un-baised evidence.
v) The omission in the charge regarding the Axe as the weapon of offence has not prejudiced the defence of the accused as the same is mentioned in the charge sheet and he faced the trial with the knowledge that two weapons are imputed as weapons of offence.9
Crl.A.No.338/2012
vi) All the circumstances set up by the prosecution are proved by cogent and consistent evidence.
7. Having regard to the rival contentions the question that arises for consideration is whether the impugned judgment of conviction and sentence is sustainable?.
8. Some of the undisputed facts of the case are as follows:
That the marriage of accused and deceased Geetha was solemnized on 20.04.2009 at Mandarthi in the mass marriages. The other victim Manjamma is the mother of Geetha. After marriage accused lived with Geetha and Manjamma in their house i.e., scene of offence. Said Geetha and Manjamma died homicidal death in the very house in Benaki Village, Hosanagar on 22.07.2009. After the incident the accused was not found in the house.10
Crl.A.No.338/2012
9. The Accused denies that he was quarrelling with Geetha suspecting her fidelity. His defence is that on the day of the incident he was away from his house on his avocation of of playing drums in the marriages.
10. There are no eye witnesses to the incident. The case is based on the circumstantial evidence. The circumstances are:
i) Accused was suspecting fidelity of Geetha and quarrelling with her. His suspicion lead to the offence.
ii) The accused and deceased were last seen together by PW.6-Smt.Chowadamma.
iii) After the incident accused absconded from the house.
iv) On the succeeding morning of the
incident, PW.5 & PW.14 found the
accused leaving the village with a bag in 11 Crl.A.No.338/2012 his hands. Thereafter the victims were found dead due to homicidal injuries.
v) On the basis of the voluntary statement of the accused there is recovery of the belongings of deceased Geetha, the weapons of offence MO-17 and MO-18 and his blood stained shirt- MO.19.
Motive:
According to the prosecution, the accused was suspecting the fidelity of his wife Geetha and harassing her and on the date of the incident when he was harassing Geetha on the same issue Manjamma the mother of Geetha intervened and the accused assaulted them with MO.17 the hammer MO.18 the axe on their heads and committed murder. To prove the circumstance of motive, the prosecution relies upon the evidence of PWs.1, 4, 5, 6, 10 and 11 to 13. 12 Crl.A.No.338/2012
11. PW.1 is the cousin (son of the senior uncle) of victim Manjamma. He has filed complaint Ex.P.1 about the incident. He deposes that his village Nagarakoduge situates at a distance of 2 Kms., from Benaki village, the accused was suspecting the fidelity of Geetha and harassing her and during her visits to his house Geetha used to tell him about the accused suspecting her fidelity and harassing her.
12. In the course of cross examination of PW.1, his relationship with the deceased, the distance between his village and the residence of the deceased and the visits of the deceased to his house are not denied. He being the cousin of Manjamma and uncle of Geetha and residing in the close bye village, there is nothing unnatural to disbelieve his evidence about the visit of the Geetha to his house or she revealing him about the harassment of the accused.
13Crl.A.No.338/2012
13. PW.4 Sharadamma is the younger sister of deceased Manjamma and aunt of deceased Geetha. She states that the deceased Manjamma used to tell her that the accused harasses Geetha suspecting her fidelity. The relationship of this witness with deceased is not disputed. She denies the suggestion that after the marriage, the deceased and herself were not visiting each other. This witness also being the close relative, her evidence about deceased revealing about the accused suspecting fidelity of Geetha and harassing her and discard between the accused and Geetha on that issue is not unnatural. In her cross-examination accused has failed to impeach her evidence.
14. PW.5 Rathnakara states that the distance between his village Talneri and Benaki is half furlong and he is running a shop in his village. He speaks about the marriage of accused and Geetha, accused living with Geetha and 14 Crl.A.No.338/2012 Manjamma since 3 months prior to the incident. He states that, during his visits to the village of the deceased Manjamma, she used to reveal that, the accused is ill-treating her and Geetha and suspecting fidelity of Geetha. He also states that the accused was visiting his shop to buy Gutkha. He further states that during his visits accused was telling him that some people visit the house of Manjamma during night time and Geetha's character is not good. He states that, he had advised the accused and the deceased Geetha not to quarrel with each other and live cordially.
15. In the cross-examination of this witness, he being neighborhood villager and acquaintance of the accused and deceased and his visits to village of deceased are not disputed. He even states that he had advised the accused between 22 n d and 23 r d of July 2009. The fact of, he running a provision store in his village is also undisputed. Having regard to the non denial of his 15 Crl.A.No.338/2012 acquaintance with accused and deceased and the other things as stated above there is nothing unnatural in the accused and the deceased revealing to him about their such differences.
16. PW.6 is the cousin of Manjamma, she states that Manjamma used to tell her that the accused quarrels with Geetha everyday and beats her and insists her not go for work. This witness and Manjamma apart from being the relatives and lived in the same village. In the cross-examination of this witness, the said aspect is not disputed. It is only suggested that Manjamma never revealed that the accused makes galata which she has denied. This witness is aged about 67 years. Being the relative and from the same village there is nothing unnatural in deceased and this witness meeting each other and discussing the family issues. There is no reason to disbelieve the evidence of this witness.
16Crl.A.No.338/2012
17. PW.10 is the daughter-in-law of the deceased Manjamma and sister in law of deceased Geetha. She states that since the relationship between herself and her husband was not good, she was residing in her parental house, but still her relationship with her mother-in-law and sister- in-law was good. She states that after the marriage of Geetha her mother-in-law had met her and told her about the accused suspecting fidelity of Geetha. In the cross-examination of this witness, her relationship with the deceased is not disputed. It is not even denied that she met Manjamma and the revelation made by Manjamma to her regarding the accused suspecting fidelity of Geetha.
18. PW.11 Krishna Murty claims that he initiated the marriage negotiations between the accused and the deceased at the request of accused. He states that the marriage of Geetha and the accused was performed in mass marriages 17 Crl.A.No.338/2012 in Mandarthi. He further states that, after the marriage the Benaki villagers told him that, the accused is suspecting the fidelity of Geetha. In the cross-examination of this witness the very fact of he initiating the marriage negotiation is denied but witness denies that suggestion. However, since witness states that some villagers informed him about the harassment of the accused and suspecting fidelity of Geetha it is hearsay evidence and if no much help to the prosecution.
19. PW.12 Gopala Bhat is a village elder aged about 69 years. He states that in the marriage of Geetha and the accused another village elder Thimmappa Gouda i.e., PW.13 and himself helped financially. He states that he donated rice for the purpose of marriage of accused with the deceased in mass marriages at Mandarthy. He further states that after the marriage Manjamma revealed to him that the accused is suspecting fidelity of Geetha and 18 Crl.A.No.338/2012 assaulting her and he advised them to resolve the issue among themselves.
20. In the cross-examination of this witness he being the village elder and his acquaintance with Manjamma and Geetha is not disputed. In the cross-examination he states that, his house is at the distance of 2 furlongs from the scene of occurrence. Even that is not disputed.
21. PW.13 Thimmappagouda is another elderly person from Talneri village he states that the distance between Talneri village and Benaki village is 1 Km. He further states that prior to the marriage of accused and Geetha, Geetha was working in his house. He states that at the request of Manjamma he donated rice, coconut and lent financial assistance of about Rs.8,000/- to Rs.10,000/- for performing marriage of Geetha. He further states, at the request of Manjamma he got MO.21 a pair of ear studs for Geetha. He states that after the marriage of accused and Geetha, 19 Crl.A.No.338/2012 Geetha worked in house about 5-6 days and thereafter she stopped working in his house. He states that on enquiry he learnt from the neighbors of the deceased that, the accused suspects the fidelity of Geetha and therefore not sending her for work. He states that, 2-3 days prior to the death of Manjamma and Geetha, the accused visited his house and told that the relationship between himself and his mother-in- law is not good and he will take his wife to his own place. He further states that, the accused told him that Geetha's character is not good and some people visit her house during night time for which he told the accused that Geetha is good lady.
22. In the cross-examination of this witness though he lending financial assistance to the Manjamma is disputed, the fact that Geetha and Manjamma were working in his house is not disputed. Further his evidence that accused 20 Crl.A.No.338/2012 complained to him about the character of Geetha is also not denied.
23. PWs.12 and 13 are aged about 69 years and 60 years respectively and they are the village elders. The evidence of these two witnesses is corroborated by each other. Nothing worth is elicited in the cross-examination any of the above witnesses to demonstrate that they are interested witnesses or have any reason to depose falsely against the accused. The trial court was justified in relying on the evidence of aforesaid witnesses in holding that the motive circumstance is proved. Reg.Last seen together.
24. According to the prosecution the accused and deceased were last seen together by PW.6 Smt.Choudamma, thereafter they were found dead due to homicidal injuries. As already pointed out, PW.6 is the cousin of Manjamma. Both were 21 Crl.A.No.338/2012 living in the same village. Her evidence on motive is accepted.
25. The crime has occurred on Wednesday i.e., on 22.07.2009 at 6.30 am in the house where the accused and deceased lived together in Benaki village. PW.6 states that on Tuesday i.e., the previous day of the offence the deceased and accused had come to her house, on her invitation to celebrate Maridevi festival and they stayed in her house up to 4.00 pm.
26. PW.6 further states that while the accused and deceased were returning to their house, since it was raining she lent her umbrella to them. She further states that on Wednesday at 4.00 pm when she went to the house of the deceased to collect umbrella, umbrella was on the pial of the house, the accused was not found and the deceased were found dead due to homicidal injuries.
22Crl.A.No.338/2012
27. As already pointed out the relationship of this witnesses with the deceased Manjamma and Geetha is not disputed. It is also not disputed that they were living cordially. Only suggestion to her is that the deceased and accused celebrated Maridevi festival in their house only and they did not go to her house. She denies the said suggestion. At one breath and accused says that he was not at all in the village on that day and he was out of the village on his profession of playing band in the marriages. At another breath he says that, himself and deceased celebrated the festival in their house and they did not go to house of PW.6.
28. The evidence of PW.6 that she saw the scene of occurrence first and then she secured the village elder PW.12 informing him about the foul smell is corroborated by evidence of PW.12. The fact of there being Maridevi festival in the village is also not in dispute. Nothing worth is elicited in 23 Crl.A.No.338/2012 the cross examination of PW.6 to show that she has any reason to falsely implicate the accused in the case. Therefore, the trial court is justified in holding that the last seen together circumstance is proved.
Reg. absconding of the accused and plea of alibi.
29. PWs.1, 2, 5, 6, 11 to 13 state that immediately after the crime the accused was found missing from the house of the victims. It is the contention of the accused himself that on the day of occurrence of the crime he was not in the village. His contention that he was away from the village on his avocation of playing the band in the marriage amounts to the plea of alibi.
30. Admittedly, the accused and deceased ordinarily resided together in the house where the crime has occurred. It is already accepted that soon before the victims were found dead the accused and victims were seen together by PW.6. 24 Crl.A.No.338/2012 When the accused sets up plea of alibi he has to explain, he was in which place at the time of occurrence of the crime. He simply suggests to the witnesses that he was not in the village. In the cross-examination he does specify the place of his presence at the time of occurrence. As rightly pointed by the trial court in his examination under Section 313 of Cr.P.C he does not whisper any thing about he being in some other place or reason for being absent from scene of occurrence.
31. When the accused raises defence of alibi, section 103 of the evidence Act requires him to prove such defence. The accused has failed to substantiate such defence except his counsel's suggesting that, he was not in the village. The trial court rightly held that the circumstances of that accused absconding from the scene of occurrence after the incident is proved and plea of alibi is not established.
25Crl.A.No.338/2012
Soon after the incident the accused was found leaving the village :
32. To prove this circumstance, the prosecution relies upon the evidence of PW.5 Ratnakara, PW.14 Shruti. As already pointed out, PW.5 was acquainted with the accused and deceased both. He is resident of Talneri village. He states that, the day of the offence at 8.15 am, when he was proceeding to Hosanagar, he found accused boarding Gurushakti Bus which was proceeding to Theerthahalli. In the cross- examination of this witness absolutely there is no denial of the said statement.
33. PW.14 Smt.Shruti is the resident of Talneri village she states that at the relevant time, she was studying in 9 t h standard in Sosale High School and she used to travel from Talneri to Sosale in the morning to attend to her school. She states that she is acquainted with accused and deceased and she knows about their marriage. She 26 Crl.A.No.338/2012 states that on the date of incident at 8.00 am when she was boarding Gurushakti Bus from Talneri bus stop she found the accused boarding the same bus from the backdoor. She further states that the accused got into the bus and seated in her back seat. She states that, at that time the accused was holding a plastic bag. She further states that both of them boarded the bus from the bus stop situated near the shop of PW.5 Ratnakara, she alighted from the bus at Bellodi stop and accused proceeded in the same bus towards Theerthahalli.
34. In the cross-examination of this witnesses her acquaintance with the accused and the deceased and fact of, she traveling from Talneri to Sosale for attending school are all not denied. It is only suggested to her that the accused did not board her bus. Since there is no dispute with regard to PW.14 traveling on that route and her acquaintance with the accused, the 27 Crl.A.No.338/2012 chance of she sighting the accused in the course of her journey is not unnatural.
35. Nothing worth is elicited in the cross- examination of PWs.5 and 14 to demonstrate that they have any ill will and malice against the accused to implicate him falsely in the case. Therefore, trial curt has rightly accepted the evidence of these two witnesses and held that the circumstance of accused leaving the village soon after the crime is proved.
Recovery of MOs.No.20 to 22 of the jewellary of deceased Geetha at the instance of the accused:
36. According to the prosecution after commission of the crime the accused collected MOs.20 to 22 the mangalya chain, ear stud and mangalya of victim Geetha and fled from the scene of crime. It is further case of the prosecution that on 24.07.2009 at 8.00 pm. Police Sub-Inspector Devaraju (PW.19) traced the accused and 28 Crl.A.No.338/2012 produced him before PW.20 the Investigating Officer and on the personal search of the accused MOs.20 to 22 jewels of Geetha were found along with Aircell mobile sim card MO.23 and railway ticket.
37. It is further case of the prosecution that PW.20 seized the said articles under mahazar Ex.P.5 in the presence of panchas PW.7- K.Teekappa and CW.14-Dharmappa S/o Giddappa. To prove this circumstance the prosecution relies upon the mahazar Ex.P.5, the evidence of PW.7 the mahazar witness and PW.20 the Investigating Officer. Ex.P.5 said to be recorded on 24.07.2009 between 8.00 and 8.30 pm in Hosanagar Police Station.
38. PW.7 Teekappa is the resident of Mumbaru Village which is at the distance of 5 Kms., from the Hosanagar. PW.7 states that on that day police summoned him arround 6.30 pm to the Police station stating that they have to draw 29 Crl.A.No.338/2012 the mahazar. He further states that when he reached police station the accused was there. He states that the accused took out a plastic cover and that cover contained two ear studs, two mangalya and two gold beads. He further states that, accused possessed mobile simcard and bus tickets and police seized the same and drew the mahazar Ex.P.5 for the same.
39. The only suggestion made to this witness in the cross-examination is that on that day he was not in the police station. For that PW.7 states that police showed him the accused and proceedings were video recorded.
40. PW.10 the sister-in-law of the deceased and PW.13 who bought MO.21 one pair ear stud for deceased Geetha at the request of her mother Manjamma have identified the MO.21. Nothing worth is elicited in the evidence of PW.7 to disbelieve the recovery of Ex.P.5. Therefore, the said circumstance is held proved.
30Crl.A.No.338/2012 Recovery of weapons of offence MO.17 and 18:
41. According to the prosecution accused gave voluntary statement, volunteering to show the place where he has concealed the weapons of offence and led the Investigating Officer to a grove of the bushes situated 25 Ft., away from the scene of occurrence.
42. It is further case of the prosecution that he took out weapons MOs.17 and 18 from the bushes and produced them before the Investigating Officer. It is further case of the prosecution that, the Investigating Officer seized MOs.17 and 18 in the presence of panchas PW.9 and CW.10 by drawing the mahazar Ex.P.7.
43. To prove said circumstance the prosecution relies upon Ex.P.7 mahazar and evidence of PWs.9, CW.10 and PW.20-Investiating Officer. PW.9 the President of Gram Panchayath, Nagarakodi deposes that on 25.07.2009 he was 31 Crl.A.No.338/2012 summoned to Hosanagar Police Station at around 8.00 to 8.30 by the Hosanagar Police. He further states that himself and CW.10 went to the police station and accused was found there. He further states that the accused volunteered to show the place of concealment of offence and then led the panchas and police to Benaki village and produced MOs.17 and 18 which were concealed in a bush. He further states that the Investigating Officer drew mahazar Ex.P.7 to record the proceedings and took their signatures.
44. PW.9 and CW.10 being president and vice president of the Gram Panchayath are the responsible persons in the village. In the cross- examination of PW.9 the said fact is not disputed it is only suggested that the accused has not led anywhere and produced any documents and he is deposing falsely. The witness has denied such suggestion. Nothing is elicited to the witness to show that he has any ill will against accused to 32 Crl.A.No.338/2012 depose falsely against him. There is no reason to accept the version of the accused that on influence of the police, PW.9 deposes falsely. Therefore, the trial court has rightly accepted his evidence.
Recovery of MO.19 shirt of the accused and MO.8, the plastic cover containing the short MO.19:
45. It is the case of the prosecution that on 25.07.2009 after recovery of the weapons of offence the accused volunteered to show the place where he has concealed his bloodstained shirt, led Investigating Officer and the panchas PW.9 and CW.10 to pathway situated near Kallusagara bridge on Indralli-Udupi railway station road and produced MO.8 plastic cover, the said plastic cover contained his bloodstained shirt MO.19. It is further case of the prosecution that, the Investigating Officer seized the same under mahazar Ex.P.8 between 2.30 and 3.15 pm. 33 Crl.A.No.338/2012
46. To prove the said circumstance the prosecution relies upon the evidence of PW.9, PW.19 and Ex.P.8. PW.9 states that after the mahazar Ex.P.7 the accused voluntarily produced the clothes worn by him at the time of commission of offence. He further states that the accused further led them to Udupi-Munavalli Road and produced a plastic cover from the bushes grown by the side of the road. He further states that the said plastic cover contained MO.19 and these articles were seized under Mahazar Ex.P.8. As already discussed, PW.9 was the president of gram panchayath at that relevant point of time. Summoning him for the recovery mahazar is quite natural. Even with regard to the proceedings under Ex.P.9. His evidence is unimpeached. Therefore, this circumstance is also proved. Reg. defective charge
47. The learned counsel for the appellant contended that in the charge, it is stated that the 34 Crl.A.No.338/2012 accused assaulted the victim with a hammer and there is no mention of the axe. She further contended that due to omission to mention axe in the charge the recovery of the weapon has to be disbelieved. She further contends that such omission in the charge makes the charge defective and vitiates the trial.
48. In the charge, trial court has mentioned only hammer as weapon of offence. However, in the charge sheet itself, the weapons of offence were shown as hammer and axe. The charge sheet was served on the accused which contained the recovery mahazars. The records show that the prosecution led the evidence all along imputing hammer and axe as weapons of offence. The accused cross examined the witness on the same line. That shows that the accused was aware that the prosecution alleged commission of the offence by hammer and axe both.
35Crl.A.No.338/2012
49. Section 215 of Cr.P.C reads as follows; Section 215. Effect of errors.-
No omission to state the offence or those particulars of offences, shall be regarded at any stage of the case as material, unless the accused was in fact mislead by such error or omission, and it has occasioned a failure of justice. Section 464 Cr.P.C states that no error, omission or irregularity in the charge invalidates the finding, sentence or order of court of competent jurisdiction unless the appellate court is of the opinion that such omission or irregularity by has occasioned the failure of justice.
50. The evidence on record clearly shows that, accused was not mislead by omission in the charge with regard to the axe as weapon of offence and that has not prejudiced his defence in any way in the trial. Therefore, the arguments of 36 Crl.A.No.338/2012 the counsel for the accused that the omission in the charge to mention axe as weapon of offence vitiate the trial or makes the evidence of recovery of axe unworthy of reliance lacks merit.
51. The discussions made above, clearly show that though the case is based on the circumstantial evidence, the circumstances set up by the prosecution are all proved and the chain of circumstances are well connected and complete and lead to the sole hypothesis of guilt of the accused.
52. For the aforesaid reasons the conviction recorded by the trial court does not call for interference. Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE EM/-