Karnataka High Court
Thippanna vs State By Masthi Police on 8 September, 2020
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8th DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
CRIMINAL APPEAL NO.171/2015
C/W
CRIMINAL APPEAL NO.820/2015
IN CRL. A. No.171/2015
BETWEEN:
THIPPANNA
S/O SONNAPPA,
AGED 35 YEARS,
R/AT CHIKKA KALLAHALLI VILLAGE,
MASTHI HOBLI,
MALUR TALUKAA-563139
KOLAR DISTRICT,
KARNATAKA STATE. ...APPELLANT
(BY SRI VEERANNA G. TIGADI, ADVOCATE)
AND:
STATE BY MASTHI POLICE,
MALUR TALUK-563139,
KOLAR DISTRICT.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560001. ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO SET ASIDE THE JUDGMENT DATED
28.1.2015 AND ORDER OF SENTENCE DATED 29.1.2015
PASSED BY THE PRINCIPAL SESSIONS JUDGE, KOLAR, IN
S.C. NO.13/12 CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF
IPC.
IN CRL. A. No.820/2015
BETWEEN:
THE STATE OF KARNATAKA,
BY MASTHI POLICE STATION-563139. ...APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
AND:
THIPPANNA
S/O SONNAPPA,
AGED 35 YEARS,
R/AT CHIKKA KALLAHALLI VILLAGE,
MASTHI HOBLI,
MALUR TALUK-563130
KOLAR DISTRICT. ...RESPONDENT
(BY SRI VEERANNA G. TIGADI, ADVOCATE)
...
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
377 OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO MODIFY THE JUDGMENT AND ORDER
DATED 28.1.2015 PASSED IN S.C. NO.13/12 ON THE FILE
OF THE PRINCIPAL SESSIONS JUDGE, KOLAR AND
IMPOSE ADEQUATE FINE ON THE ACCUSED/
RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC, IN ACCORDANCE WITH LAW, AND
THE RESPONDENT/ACCUSED IS SENTENCED TO
UNDERGO IMPRISONMENT FOR LIFE FOR THE PROVED
OFFENCE UNDER SECTION 302 OF IPC.
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THESE CRIMINAL APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ARE COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
Criminal Appeal 171/2015 is filed by the accused/ appellant against the impugned judgment and order of conviction dated 28.1.2015 made in S.C.No.13/2012 on the file of the Principal Sessions Judge, Kolar convicting the him for the offence punishable under Section 302 of Indian Penal Code and sentencing him to undergo imprisonment for life.
2. Criminal Appeal No. 820/2015 is filed by the State against the aforesaid impugned judgment and order of conviction only in so far as non-imposition of any fine for the offence punishable under Section 302 IPC which is mandatory.
I - Facts of the case
3. It is the case of the prosecution that the deceased Lakshmamma was the wife of Ramanna. 4 Ramanna and his brother Doddanna-P.W.1, who is the complainant were residing separately in the farm house constructed by them in the lands belonging to them. Ramanna and his wife-deceased Lakshmamma were residing in the farm house situated in their land, whereas, Doddanna and his wife and his family members including his son, daughter-in-law and grand children were residing in the neighbouring farm house in the same land. The accused, the neighbouring land owner was cultivating the said land by growing mulberry crops. It is further the case of the prosecution that since Ramanna, husband of deceased Lakshmamma was suffering from ill-health, he had been to Bengaluru in order to take treatment and during the relevant period of time, he was staying in the house of his daughter at Bengaluru itself, whereas his wife Lakshmamma alone was staying in the farm house looking after the cattle. Since Doddanna P.W.1 and his family members were residing in the neighbouring house, they used to help Lakshmamma, when her husband used to stay at Bengaluru for treatment. 5
4. It is the further case of the prosecution that on 24.10.2011, Lakshmamma went to the land of the accused in order to cut grass for her cattle, and while she was so cutting, as the cordless phone installed in her house started ringing, the grand daughter of Doddanna - Kumari Keerthi - P.W.3 took the cordless phone and approached Lakshmamma and gave that cordless phone to her asking to answer the call. At that time, Keerthi saw the accused standing near Lakshmamma and talking to her. After giving the said cordless phone to Lakshmamma, the said Keerthi went back to her house since her mother was calling her. Thereafter, Lakshmamma never returned to the house till evening. Then Doddanna and his family members started searching Lakshmamma during that night. Since his grand daughter told him that she had seen Lakshmamma cutting grass in the lands of the accused when she had been there to give cordless phone to Lakshmamma, they went inside the land of the accused in search of Lakshmamma, where they found the dead body of Lakshmamma lying in the midst of mulberry 6 plants. On seeing the dead body, they found scratched injuries on her both hands and killed manually by pressing her neck with some object. Her both ear studs were found missing wherein one ear stud was removed from her ear lobe whereas another ear stud was found snatched forcibly since there was bleeding injury on the said ear lobe. On seeing the dead body of Lakshmamma lying in the lands of the accused, Doddanna informed his brother Ramanna over phone and lodged a complaint with the jurisdictional police as per Ex.P.1. The police initially registered a case against an unknown culprit and took up the investigation. As per the statement of P.W.3 Kumari Keerthi, the accused was last seen talking with the deceased Lakshmamma, when she went near Lakshmamma to give cordless phone to her, and therefore, the police subjected the accused for interrogation.
5. It is the further case of the prosecution that during interrogation, the accused had disclosed the fact that, he was the real culprit, who killed Lakshmamma. 7 His voluntary statement was recorded and during inquiry, the accused having admitted killing of Lakshmamma, further volunteered to produce the ear studs, which he had snatched from the ear lobes of deceased Lakshmamma and also volunteered to produce the cordless phone and a bag, which deceased Lakshmamma was keeping with her for carrying pan leaves and areca nuts and on the basis of the said voluntary statement, the cordless phone, one small cloth bag meant for keeping pan leaves and areca nuts which belonged to the deceased Lakshmamma and also a sickle have been seized. It is the further case of the prosecution that the accused took the police to his house at Chikka Kallahalli village; inside his house he took out a currency note of Rs.500/- and produced the same saying that it was the amount he received for having pledged the ear studs of deceased Lakshmamma with the pawn broker. Accordingly, the police have seized the same by preparing the seizure mahazar. After completion of the investigation, the jurisdictional police filed a charge sheet before the Magistrate against 8 the accused alleging that he has committed an offence punishable under the provisions of Section 302 of IPC. Thereafter, the learned Magistrate having taken cognizance of the offence against the accused registered a case against the accused in C.C.No.29/2002. Since the offence alleged against the accused was exclusively triable by the Court of Sessions, the learned Magistrate exercising powers under Section 209 of Cr.P.C., committed the case to the Court of Sessions for trial. On committal and after framing of the charge for the aforesaid offence, as the accused denied the charges and claimed to be tried, he was tried in Session Case No. 13/2012.
6. In order to establish the guilt of the accused, the prosecution has examined the witnesses P.Ws 1 to 17 and got marked the material documents Exs.P.1 to P.20(a) and material objects M.Os.1 to 8. After closure of the evidence on behalf of the prosecution, total denial appears to be the defence strategy of the accused that he is innocent and has nothing to do with the homicidal 9 death of Lakshmamma as is clear from the answers given by him while being questioned under Section 313 Cr.P.C. with regard to incriminating evidence available against him in the prosecution evidence.
7. After appreciating both oral and documentary evidence, the learned Sessions Judge has recorded a finding that the prosecution has proved beyond all reasonable doubt that on 24.10.2011 at about 11.30 a.m., the accused has committed the murder of the deceased Lakshmamma with an intention or knowledge to cause her death and thereby committed an offence punishable under Section 302 of IPC. Accordingly, by the impugned judgment and order of conviction dated 28.1.2015 convicted the accused and on 29.1.2015, sentenced him to undergo imprisonment for life under the provisions of Section 302 of IPC. Hence, the present appeal is filed by the accused.
8. Since the learned Sessions Judge while imposing sentence of imprisonment for life punishable under the provisions of Section 302 of IPC., has not 10 imposed any fine as mandated, the State-prosecution has filed Criminal Appeal No.820/2015.
9. I have heard the learned Counsel for the parties to the lis.
II - Arguments advanced by the learned Counsel for the accused
10. Sri Veeranna S. Tigadi, learned Counsel for the accused contended with vehemence that the prosecution has not proved the motive for the offence as alleged by it and the last seen theory of the accused in the company of the deceased by P.W.3-Kumari Keerthi, grand daughter of the deceased and therefore, the learned Sessions Judge has committed a grave error in convicting the accused. He further contended that mere recovery of material objects M.O.1 - Cordless phone, M.O.2 - Ele-adike Cheela (small cloth bag), M.O.3 - sickle, M.O.4 one currency note with a denomination of Rs.500/-, M.O.5 - one pair of ear stud from the accused on the basis of his statement made under Section 29 of 11 the Indian Evidence Act, in the absence of any eye witness or circumstantial evidence, cannot be a ground to convict the accused. He further contended that Ex.P.5 is a carbon copy of the receipt issued by the owner of the shop, who has not been examined. When Ex.P.5 is the receipt issued for having pledged M.O.5 - ear studs by the accused wherein the signature of the accused is not found and the authenticity of which is not proved, the same cannot be believed. With regard to the alleged extra judicial confession made by the accused before P.W. 12 - Thimmarayappa and P.W.13 - Rajappa, only Rajappa has supported the case of the prosecution whereas P.W.12-Thimmarayappa has turned hostile. He further contended that as the learned Sessions Judge has not properly appreciated both oral and documentary evidence, the impugned judgment and order of conviction is liable to be set aside.
11. The learned Counsel for the accused further contended that in view of the evidence of P.W.10 Doctor 12 Manjunatha Swamy, Ex.P.11 - postmortem report, Ex.P.12-opinion expressed by the doctor which is in the nature of advice, the learned Judge ought not to have convicted the accused and no material is produced by the prosecution to prove the homicidal death of the deceased beyond reasonable doubt as there is no internal injury. He would further contend that Ex.P.15 the sketch of the scene of occurrence clearly depicts that Ramanna and deceased Lakshmamma were residing together and Doddanna - P.W.1 was residing in the adjoining farm house. The distance between the house of the deceased and the spot of incident is 75 meters. P.W.10 doctor in his examination-in-chief, has deposed that the death of the deceased Lakshmamma was due to asphyxia as a result of manual throttling is contrary to his own Postmortem report Ex.P.11 - which clearly indicates that the death is due to asphyxia as a result of 'throttling'. As such, as there is an improvement in the evidence of the doctor supporting the case of the prosecution, his evidence cannot be relied upon. He would further contend that the death is 13 not homicidal as the intention of the accused is not proved under Section 299 of IPC. In the complaint, there is no plea about P.W.3 - Kumari Kirthi had last seen the deceased in the company of the deceased. The evidence of P.W.3 is only an improvement of the case of the prosecution as her statement was not recorded by the Investigating Officer till 28.10.2011 even though the incident had occurred on 24.10.2011 as could be seen from the evidence of P.W.16 the Investigating Officer.
12. The learned Counsel for the accused would further contend that P.W.4, who is the mother of P.W.3
- Kirthi and daughter in law of P.W.1 - Doddanna, has deposed that she was working nearby in their land and she heard her daughter P.W.3 talking to the deceased Lakshmamma in a normal voice, strangely thereafter, she did not hear the deceased and the accused quarreling with each other, which clearly goes to show that the evidence adduced by the P.W.4 is false. He would contended that, it is also clear from her evidence, that when she knew that the deceased was talking to an 14 unknown person on 24.10.2011 and on the next day at 9.00 a.m. on 25.10.2011 they searched the deceased Lakshmamma and then they found her in the garden of the accused itself shows that the accused has been falsely implicated in the case. It is his further contention that P.W.15-Murali, in whose name the alleged cordless phone is standing has deposed that he had given the cordless phone - M.O.1 to Lakshmamma since she was residing alone in the farm house. Except producing Ex.P.16 xerox copy of the application stated to have been made by him, no other evidence is produced to show that infact on the basis of the said application, phone connection was given and the same was installed in the house of the deceased. Hence, he contended that the evidence of P.W.15 is not safe to believe. With regard to the delay in recording the statement of P.Ws.3 and 4 by the Investigating Officer, he contended that there is no explanation before the Court and therefore, their evidence being not cogent and credible, it cannot be relied upon.
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13. The learned Counsel for the accused contended that the evidence of the chance witness - P.W.3 has to be discarded as her presence at the place of occurrence was doubtful and unnatural. In so far as seizure of M.Os.1 to 3, denomination of Rs.500/- in the house of the accused, the seizure mahazars cannot be believed since no blood stains were found on them. He would further contend that P.W.17 - the Sub-Inspector of Police apprehended the accused from his house at about 10.00 p.m. on 25.10.2011 but, by that time, the statement of P.W.3 was not recorded, and it was recorded only on 28.10.2011. Therefore, her statement cannot be relied upon. Moreover, P.W.9 - Ramanna, the second husband of the deceased in his examination-in- chief has stated that the deceased had advanced a sum of Rs.3,000/- to the accused, but P.W.13 - Rajappa deposes that the accused had borrowed a sum of Rs.1,000/- and had given to him. In view of the statement made by P.W.9 - Ramanna is contrary to the statement made by P.W.13 - Rajappa, he contended that, the evidence of P.W.9 cannot be relied upon and 16 therefore, there is no evidence to prove that the accused had borrowed the money from the deceased. Since there are contradictions in the evidence of the prosecution witnesses, the motive on the part of the accused to murder the deceased Lakshmamma is not proved.
14. The learned Counsel further contended that the charge sheet filed against the accused is that the accused had borrowed a sum of Rs.2,000/- from the deceased, but there is no such plea in the complaint. With regard to recovery of M.O.5 - one pair of ear stud at the instance of the accused, the shop owner has not been examined, but the salesman - P.W.14 - Govinda Kumar has been examined, who has spoken that whenever the ornaments are pledged, signature or thumb impression of the person who pledges ornament will be taken. But in Ex.P.5, the receipt produced for having pledged the ear studs - M.O.5 by the accused, there is no mention of either name, signature or thumb impression. Therefore, he contended that prosecution 17 has not proved its case. The learned Counsel further contended that P.W.7- C.M. Gopal, who is panch witness to the inquest mahazar Ex.P.2 and one of the contestant in the Gram Panchayat elections has given evidence that there was rivalry between his group and the accused group and because of that the accused might have committed the murder and as no independent witness has been examined, his evidence cannot be relied upon.
15. The learned Counsel would further contend that P.W.16 the investigating officer has not recovered the receipt-Ex.P.5 for having pledged the ear studs from the custody of the accused. Mere recovery of M.O.5 - ear studs under Ex.P.4 - recovery mahazar is not sufficient to implicate the accused in the crime. He would further contend that the inquest mahazar Ex.P.3 clearly depicts that there are dry abrasions of 10 inches long filled with blood in front portion of the neck and 5 inches deep abrasion with dried blood above the neck which is contrary to the evidence of Doctor-P.W.10 as 18 per his postmortem report Ex.P.11. He would further contended that the extra judicial confession made before P.W.13 recorded by the police on 19.12.2011 and the evidence recorded by the Court on 10.9.2014 nearly after about two years eight months ought not to have been considered by the Court below as he had kept quite without disclosing the same either to the police or the family members.
16. It is specifically contended by the learned Counsel for the accused that P.W.10-doctor in his report Ex.P.11 has noticed only external injuries and the said injuries appear to be simple as they do not fall under the definition of grievous injuries as defined under Section 320 of the IPC. The external injuries noted in Ex.P.11- the post mortem report in the absence of any internal injuries, are neither likely to cause death as defined under the provisions of Section 299 of IPC nor sufficient to cause death in the ordinary course of nature as required under the third exception to the provisions of Section 300 of IPC.
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17. The learned Counsel for the accused would further contend that there is a delay in registering the criminal case and absolutely no material is produced to prove that the accused has committed the murder of the deceased Lakshmamma. With regard to Ex.P.11-the postmortem report and Ex.P.12-the opinion of the doctor-P.W.10-Dr. Manjunathswamy, it is contended that, without reference to the internal injuries that they are likely to cause the death, the same cannot be relied upon in view of the provisions of Section 299 of IPC. Ex.P.11-the postmortem report shows that the death of the deceased Lakshmamma is due to 'Throttling', but the charge against the accused is 'mugging' and therefore, Ex.P.11 the post mortem report or Ex.P.12 - the expert opinion are contrary to each other, as they do not support the facts or the injuries as noted in Ex.P.11 nor demonstrate and support by convincing reasons.. Therefore, he contended that the accused is liable to be acquitted from the charge framed against him, since the prosecution has utterly failed to prove its case beyond all reasonable doubt.
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18. It is the further contention of the learned Counsel for the appellant-accused that according to the prosecution, the deceased was last seen in the company of the accused at about 11.00 a.m. on 24.10.2011 and her dead body was found at 7.00 a.m. on 25.10.2011. As such, as there is a long gap of time between the deceased seen in the company of the accused and finding her dead body, the circumstance of the accused being in the company of the deceased is of no consequence. He would further contend that as there was a delay in registering the case and in view of the evidence of P.W.10 - doctor and Ex.P.1-the postmortem report and Ex.P.12 - the opinion of the doctor, the prosecution has not proved its case beyond all reasonable doubt and hence, in view of contradictions and omissions in recording the evidence on the part of the prosecution, the learned Counsel for the appellant- accused, sought to allow the appeal.
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19. In support of his contentions, the learned Counsel for the accused relied upon the following catena of decisions of the Hon'ble Supreme Court:
i) Machindra -vs- Sajjan Galfa Rankhamb and Others reported in (2017)13 SCC 491;
ii) Javed Abdul Rajjaq Shaikh -vs- State of Maharashtra reported in (2019)10 SCC 778;
iii) Harbeer Singh -vs- Sheeshpal and Others reported in (2016)16 SCC 418;
iv) Ganpat Singh -vs- State of Madhya Pradesh reported in (2017) 16 SCC 353; and
v) State of Madhya Pradesh -vs- Kriparam reported in (2003)12 SCC 675;
III - Arguments advanced by the learned Addl. SPP
20. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor sought to justify the impugned judgment and order of conviction and specifically contended that as per Ex.P.3-the inquest mahazar, Serial Numbers 1 and 2, clearly depicts that the injuries on the dead body are abrasions. He further 22 contended that there is no delay in registering the case as the complaint was given on 25.10.2011 at 9.00 a.m. and the inquest mahazar was conducted on the same day between 10.30 a.m. and 1.00 p.m. and the accused was arrested on 25.10.2011 at 10.00 p.m. He further contended that opinion of the doctor that the 'Death is due to 'asphyxia' as a result of 'throttling' has no value in view of the inquest mahazar-Ex.P.6 conducted on 25.10.2011. As per the post mortem report-Ex.P.11 at Serial No.6 it is stated that grouped contused abrasions are noticed on the neck, brownish red in colour, just above the thyroid cartilage measuring 13 cms., more on left side, broader in the middle about 5 cms. On dissection of the neck portion, contusion is noticed. He would further contend that as per the evidence of P.W.3-the grand daughter of Doddanna - P.W.1 - the complainant, the deceased was last seen together with the accused and as her evidence is not shaken in the cross-examination, the same cannot be disbelieved. With regard to M.O.1 - the cordless phone given by P.W.3 to the deceased and M.O.1 standing in the name 23 of Murali-P.W.15, who is said to have given the cordless phone to the deceased in view of the fact that she and her husband were residing in the farm house, Murali - P.W.15 has given his evidence that M.O.1 belongs to him; he has produced a Xerox copy of the application Ex.P.16.
21. The learned Additional SPP further contended that though a suggestion was specifically put to the P.W.9 - husband of the deceased in his cross- examination that, whether M.O.1 belongs to P.W.15- Murali, he has not denied the same. P.W.15 in his cross examination though has specifically stated that he came to know the death of the deceased on 25.10.2011 and on the next day i.e., on 26.10.2011 police had enquired him. Therefore, he contended that the evidence of P.W.15 cannot be disbelieved. He further contended even the evidence of the doctor P.W.10 is to the effect that there is possibility of sustaining other external injuries noticed on the dead body which could have been sustained while the deceased tried to show 24 her resistance when the assailant had attacked her and put pressure on her neck in order to kill her. Moreover, the opinion of the doctor - P.W.10 as per Ex.P.12 that the 'death is due to asphyxia as a result of throttling' is in conformity with the charge framed against the accused. He therefore contended that the impugned judgment and order of conviction passed against the accused sentencing him to undergo life imprisonment by the learned Sessions Judge is just and proper and does not call for any interference. Hence, he sought to dismiss the Criminal appeal.
22. In support of his contentions, the learned Additional SPP sought to rely upon the following judgments:
i) Madhu -vs- State of Karnataka reported in AIR 2014 SC 394;
ii) Jugendra Singh -vs- State of Uttar
Pradesh reported in (2012) 6 SCC 297;
and
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iii) Javed Abdul Rajjaq Shaikh -vs- State of
Maharashtra reported in (2019)10 SCC
778.
23. In view of the aforesaid rival contentions, urged by the learned Counsel for the parties, the points that arise for our consideration in the present criminal appeals are:
i) Whether the accused has made out a case to interfere with the impugned judgment and order of conviction under the provisions of Section 302 of IPC, sentencing him to undergo imprisonment for life in the facts and circumstances of the present case?
ii) Whether the State-prosecution has made out a case to interfere with the impugned judgment and order of conviction for non imposition of fine as mandated under the provisions of Section 302 of IPC while imposing sentence for life?26
24. We have given our anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material including original records carefully.
25. The substance of the prosecution case is based on the substantial evidence, the last seen theory, recovery of M.Os.1 to 5, extra judicial confession as stated by P.W.13, who has supported the case of the prosecution and non imposition of fine while convicting the accused under the provisions of Section 302 of IPC, which is mandatory.
IV - Evidence of the prosecution witnesses
26. In order to re-appreciate the evidence of the prosecution witnesses and material documents relied upon and to justify the points raised in the present case, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon. 27
27. P.W.1 - Doddanna, who is the complainant and elder brother of P.W.9 - Ramanna, husband of the deceased had lodged the complaint as per Ex.P.1. He has given his evidence that on 24.10.2011, his brother Ramanna - P.W.9 had been to Bangalore for medical treatment and during that relevant period, he was residing in his daughter's house at Bangalore. The deceased used to stay alone in the farm house in order to look after the cattle. It is his further evidence that his daughter-in-law told him that Lakshmamma had not returned to the house till the night and thereafter, they started searching for Lakshmamma and even his brother Ramanna had called to me over phone and informed him about missing of Lakshmamma. They searched for her till midnight and on the next day morning, the dead body of Lakshmamma was found lying in the midst of mulberry plants in the lands of the accused and on seeing the dead body, since it was confirmed that she was done to death and her ear studs were found snatched by the culprit, he had lodged complaint as per Ex.P.1 to Masti Police Station. On the 28 basis of the said complaint, the jurisdictional police inspected the spot, prepared the inquest mahazar as per Ex.P.3 and shifted the dead body of Lakshmamma to Malur Government Hospital for conducting postmortem examination. After conduct of the postmortem, the dead body was handed over to them. He has further deposed that, he after preparation of the spot mahazar as per Ex.P.2 by the police has signed the same as panch witness. The dead body of Lakshmamma was found lying in the land bearing Sy.No.40 which is standing in the name of Sonnappa, the father of the accused where mulberry crops were grown, which were about 7 feet height as per Ex.P.2. He has also spoken to with regard to recovery of cordless phone - M.O.1, small bag meant for keeping pan leaves and areca nuts belonging to the deceased Lakshmamma - M.O.2, one sickle - M.O.3 from the land of the accused at his instance and one currency note of denomination of Rs.500/- from the house of the accused and at his instance.
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28. P.W.2 - Prakash, who is panch witness to the spot mahazar Ex.P.2, has not supported the case of the prosecution.
29. P.W.3 -Kumari Keethi, grand daughter of the deceased, who was aged about 10 years and was studying in V standard is the child witness, has spoken about her last seeing the deceased Lakshmamma in the company of the accused. It is to be noted that before examining her as a prosecution witness, the learned Sessions Judge has put certain questions to her to know whether she is capable of giving evidence before the Court and after confirming and satisfying that she has given suitable and proper reply to the questions put by the Court and is capable to give evidence, as she was aware about the importance of telling truth, the prosecution was permitted to examine her as a witness on behalf of its case. She has stated in her evidence that, she knew the accused, whose lands are situated just by the side of their farm house. According to her, her grand mother Lakshmamma after washing clothes 30 on that day, went to the lands of the accused in order to cut grass and at that time, she was in the house. As the cordless phone from the house of the deceased Lakshmamma started ringing, she took the cordless phone and came to the spot in the mulberry garden of the accused where Lakshmamma was cutting grass and gave that phone to Lakshmamma asking her to answer the call as the call was for her. She has further stated that, at that time the accused was standing there talking with the deceased Lakshmamma, and as P.W.4, the mother of Keerthi called her, she ran towards her mother. She has further deposed that her grand mother Lakshmamma did not return to the house even till 9.00 p.m. in the night and all the family members started searching for her. On the next day morning, the deceased Lakshmamma was found lying dead in the mulberry garden of the accused. She has also identified M.O.1-the cordless phone, which she had given to deceased Lakshmamma on the previous day. Though P.W.3 has been thoroughly cross-examined by the learned Counsel for the accused, she has admitted that 31 M.O.1 - cordless phone was in use in the house of Lakshmamma and since the phone started ringing, she had taken the cordless phone towards her grandmother Lakshmamma to give it to her to answer the call since the call was for Lakshmamma. She has also admitted that mulberry crops were grown in the said land more than her height and because of such height, the persons, who were moving in the midst of mulberry plants, were not visible to the persons standing on the bunds of the land. However, she has denied all the suggestions put to her.
30. P.W.4 - Shilpa - the mother of P.W.3 has stated that she is daughter-in-law of P.W.1 - Doddanna and according to her, at about 11.00 a.m. on that day while she was cleaning near the farm house, she heard her daughter talking with her grandmother in the mulberry garden of the accused and when she called her daughter-P.W.3 in response, P.W.3 Keerthi came running towards her. One enquiry with her daughter- P.W.3, she told that she had been to her grandmother to 32 give cordless phone since the call was to her. She has further stated that till that evening, Lakshmamma did not return to her house and after return of her husband, she told him about non-return of Lakshmamma to the house and thereafter, they started searching for her. On the next day morning, Lakshmamma was found lying dead in the mulberry garden of the accused. She has also spoken about the injuries found on the dead body of Lakshmamma and has identified the cordless phone - M.O.1 claiming that it was being used by the deceased Lakshmamma, M.O.2
- cloth bag, meant to keep pan leaves and areca nuts which belonged to deceased Lakshmamma. In her cross-examination, she has admitted that Lakshmamma and her husband Ramanna were residing in the neighbouring farm house, whereas she and her husband and other family members were residing in the farm house adjacent to the farm house of Lakshmamma.
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31. P.W.5 - Bidarappa, who is panch witness to the inquest mahazar - Ex.P.3 has supported the case of the prosecution.
32. P.W.6 - Krishnappa, who is the brother of the deceased who has identified the dead body has deposed that he was present when the inquest mahazar was drawn as per Ex.P.3 and has given his evidence supporting the case of the prosecution.
33. P.W.7 - C.M. Gopala, who is also one of panch witnesses to Ex.P.2 - spot mahazar i.e., presence at the scene of occurrence, Ex.P.4 - seizure mahazar of M.Os.1 to 3, Ex.P.5 - seizure of receipt for having pledged M.O.5, Ex.P.6-seizure mahazar one pair of ear stud has given his evidence supporting the case of the prosecution.
34. P.W.8 - Kempanna, who is also another panch witness to the seizure mahazar - Ex.P.9 for recovery of M.O.5 - one pair of ear stud from the shop of 34 P.W.14 at the instance of the accused, has supported the case of the prosecution.
35. P.W.9 - Ramanna, who is the husband of the deceased Lakhmamma has supported the case of the prosecution by giving his evidence that on the date of the incident, he was in Bangalore. He has identified M.O.1 - Cordless phone, M.O.2 - Ele Adike Cheela (small cloth bag) and M.O.5 - one pair of ear stud which belonged to his wife deceased Lakshmamma. He has further stated that while he was in Bangalore, he received a phone call from his brother P.W.1 informing about the death of Lakshmamma and on receiving the said information, he rushed to his village and went near the spot where the dead body of his wife was lying and gave the evidence regarding preparation of inquest mahazar and spot mahazar by the police at the spot. A small bag - M.O.2 - Ele adike chila which was being used by his wife for keeping pan leaves and areca nuts and a cordless phone which was in use in his house have been identified by him. He has further deposed 35 that his wife Lakshmamma borrowed Rs.3,000/- from him and he had told him that it was lent to the accused. Though he has been thoroughly cross-examined by the learned Counsel for the accused, nothing has been elicited to disbelieve his evidence except saying that he has seen the dead body of his wife lying in the lands of the accused. Though the learned Counsel for the accused has put a suggestion that as there was political rivalry between his group and the group of the accused, since they were politically in the rival groups and because of this reason, he is giving the evidence falsely against the accused by implicating him in the case, the same has been categorically denied by him.
36. P.W.10 - Doctor Manjunatha Swamy, who has conducted the postmortem examination on the dead body of the deceased Lakshmamma has given his evidence that on her examination of the dead body, the following injuries were noticed:
36
"i) Multiple small group of abrasion of varying sizes was found on chin and left side of angle of mouth.
Reddish in colour.
ii) Small semicircular abrasion was noticed on the left cheek measuring 8mm x1mm, reddish in colour.
iii) Contused abrasion on the middle of left clavicular region was noticed and oblique, brownish red colour measuring 2.5cm x ½ cm.
iv) Lacerated wound was noticed between the ring and index finger of the left hand measuring 1cm x ½ cm, reddish in colour.
v) Abrasion on medical aspect of left arm resembling nail marks, semicircular measuring ½ cm x 1mm and 1cm x 1mm, reddish in colour.
vi) Grouped contused abrasions are noticed on front of neck, brownish red in colour, just above the thyroid cartilage measuring 13 cms, more 37 on left side, broader in the middle about 5 cms. On dissection of the neck portion, contusion was noticed.
vii) Super facial abrasion noted on the posterior aspect of both elbows and it was found to be soiled.
viii) Abrasion noted on pinna of the left ear measuring ½ cm x 2 mm, reddish in colour.
ix) Abrasion on front of lower right
forearm measuring 1cm x1cm,
reddish in colour.
37. P.W.11 - Chandrashekar - the Village Accountant, who has issued RTC to the Investigating Officer as per Ex.P.13 standing in the name of the father of the accused has supported the case of the prosecution.
38. P.W.12 - Thimmarayappa before whom the accused has made the extra judicial confession, has turned hostile to the case of the prosecution. 38
39. P.W.13 - Rajappa, who has deposed that the accused has made the extra judicial confession has supported the case of the prosecution.
40. P.W.14 - Govinda Kumar, who was working as Salesman in the jewelery shop by name Maruthi Jewellers and Pawn Brokers at Masti, which belongs to one Madhulal Solanki has deposed that the accused had pledged M.O.5 - ear studs in the name of one Rajappa and he has identified the accused. He is the panch witness to Ex.P.9 the seizure mahazar for having seized the ear studs - M.O.5 which were pledged by the accused. He has further deposed that about two days prior to Deepavali festival, the accused had come to his shop for pledging a pair of ear studs - M.O.5 for a sum of Rs.3,000/- and he having accepted the pledging of ear studs from the accused, after deducting Rs.100/- towards interest, has returned a sum of Rs.2,900/- to the accused. He has further deposed that he has issued the pawn receipt in the name of Rajappa and a carbon copy of the said receipt is produced as Ex.P.5 along with 39 M.O.5 - a pair of ear stud. He has further stated that the police have brought the mahazar along with accused to his shop, recovered the pawn receipt and a pair of ear stud from his shop which he has identified them as having been pledged by the accused before the police. He has identified his own handwriting on Ex.P.5 and also his signature on the said receipt as per Ex.P.5(a). Though he has been thoroughly cross-examined by the learned Counsel for the accused, he has deposed that he had accepted M.O.5 a pair of ear stud from the accused, but there was no bloodstain on those ear studs. He has also reiterated his version that the accused had pledged M.O.5 in the name of Rajappa and as he had seen the accused earlier, he has identified him before the Court claiming that it was this accused, who had pledged M.O.5 a pair of ear stud on that day, which was subsequently recovered by the police on bringing this accused to his shop under the mahazar Ex.P.9. Even the recovery proceedings of M.O.5 from the shop of Govinda Kumar has been photographed as per Ex.P.10. In cross-examination, to a suggestion 40 that the signature of the person, who has pledged the articles-M.O.5 in his shop has not been obtained on the receipt, he has answered that the accused claimed that he did not knew writing and therefore, his signature was not obtained on the receipt. His evidence is supporting the case of the prosecution.
41. P.W.15 - Murali, the owner of the cordless phone marked as M.O.1 has given his evidence that the cordless phone is standing in his name and had given it to Lakshmamma for her use since she and her husband were residing in a farmhouse. He has obtained the phone to the local address Kikondrahalli, Sarjapur Main Road, Bangalore by producing his voter ID as per Ex.P.17. He has also produced a xerox copy issued by the Reliance Telecom sent through e-mail to the investigating officer confirming that the cordless phone is purchased in his name. In his cross-examination, he has denied all the suggestions put to him reiterating his statements given in examination-in-chief. Therefore, as there is nothing to disbelieve his evidence in so far as 41 that M.O.1 cordless phone was in use in the house of Lakshmamma and hence, his evidence supports the case of the prosecution.
42. P.W.16 - G. Keshava Murthy, the Circle Inspector of Police, who has been appointed as the Investigating Officer took up the investigation and has filed the final report has deposed that he came to know that Lakshmamma was found talking with the accused and they were last seen together as per the statement of P.W.3 Kumari Keerthi. In order to question the accused, he entrusted the Sub-Inspector of Police to apprehend the accused and hence, the Sub-Inspector of Police and his staff have apprehended the accused and produced the accused before him along with a report Ex.P.18 - report.
43. P.W.17 - Saleem C. Nadaf, the Sub-Inspector of Police has deposed that he received the complaint lodged by Doddanna - P.W.1 on which basis he registered a case as Crime No.101/2011 and since the case was a heinous crime, he went in search of the 42 accused along with the staff and on coming to know that the accused was available in his house at Chikka Kallahalli village, which was at a distance of about one kilometer from the mulberry garden of the accused, on the same day at about 10.00 p.m. and after taking the accused to his custody brought him to the police station and produced him before the Circle Inspector of Police along with his report as per Ex.P.18. On interrogation, the accused admitted that he had killed Lakshmamma and volunteered to produce the cordless phone - M.O.1, cloth bag - M.O.2 being used by Lakhsmamma to keep the pan leaves and areca nuts which were hidden under the earth and also the sickle - M.O.3 lying in the midst of mulberry crops standing in the garden which was used to kill Lakshmamma. All the material objects - M.Os. 1 to 3 which were produced by the accused near the spot where the dead body of Lakshmamma was lying, were recovered on the previous day and were seized by the Investigating Officer under the seizure mahazar Ex.P.4.
43
44. On completion of the investigation and on receipt of the necessary certificates and reports like FSL report, serology report, accused is charged for the aforesaid offence.
V - findings of the fact recorded by the learned Sessions Judge
45. On the basis of the aforesaid material on record, the learned Sessions Judge has recorded a finding that the prosecution has proved the circumstantial evidence of P.W.3, who has stated about the last seen theory of deceased with the accused, P.W.1
- Doddanna, who has lodged a complaint, P.W.9 - husband of the deceased and P.W.14 the salesman of the jewellery shop, where M.O.5 - a receipt for having pledged a pair of ear stud by the accused and on the basis the extra judicial confession made by the accused before P.W.13, voluntary statement of the accused as per Ex.P.19, post mortem report as per Ex.P.11 and opinion of doctor as per Ex.P.12, has come to the conclusion that all the material documents and the 44 circumstantial evidence are corroborated with the voluntary statement made by the accused and hence, convicted the accused for the offence punishable under Section 302 of IPC and accordingly, sentenced him to undergo imprisonment for life without imposing any fine. Only against non-imposition of fine against the accused for the offence punishable under Section 302 of IPC., the State has filed Criminal Appeal No.820/2015.
VI - Consideration
46. Admittedly in the present case, no evidence or material is forthcoming to the actual commission of offence of causing homicidal death of the deceased Lakshmamma, where the evidence is of a circumstantial evidence to link the accused to the incident that occurred as there is no eye witness to the incident. Therefore, it is necessary to find out whether the circumstances on which the prosecution relies are capable of supporting the sole inference that the appellant is guilty of the crime of which he is charged. The circumstances, in the first place, have to be 45 established by the prosecution by clear and cogent evidence and those circumstances must not be consistent with the innocence of the accused. Therefore it is necessary to find out whether the circumstantial evidence and material documents relied upon by the prosecution forms a chain so complete that there is no escape other than the guilt of the accused.
47. The following are the chain of circumstances which proved by the prosecution with regard to involvement of the accused in the homicidal death of the deceased Lakshmamma as under:
i) Death of Lakshmamma is homicidal; ii) The dead body of Lakshmamma was found
lying in the mulberry garden of the accused;
iii) Accused was last seen together with the deceased Lakshmamma by P.W.3;
46
iv) Recovery of cordless phone M.O.1 and Ele-
adike cheela - M.O.2 at the instance of the accused;
v) Recovery of sickle - M.O.3 at the instance of the accused;
vi) Recovery of a pair of ear stud M.O.5 at the instance of accused by the investigating officer from Govinda Kumar -P.W.14 Sales men, who was working in the Jewellery shop which is cogent to the evidence of the Investigating Officer and also the panch witness P.W. 5 - C.M. Gopala to the inquest mahazar Ex.P.2;
vii) P.W.14 - Govinda Kumar, who has given convincing evidence before the Court that it was the accused, who pledged M.O.5 - a pair of ear stud with him under the receipt Ex.P.5 by giving his name as Rajappa, has identified the accused which is one of the material circumstances establishing pledging of M.O.5 47 by the accused and M.O.5 - ear studs have been identified by the husband of the deceased and other witnesses that the deceased Lakshmamma was wearing those ear studs;
viii) Extra judicial confession made by the accused before P.W.13 - Rajappa, has deposed that he was aware about the accused borrowing Rs.1,000/- from Lakshmamma agreeing to pay Rs.10/- per day by way of interest and he was due to pay principal amount and interest amount to the deceased. It is his further evidence that about 3 to 4 years ago, he on returning from coolie work, went to the plantain garden of Murali Govinda in order to wash his face and there he saw the accused and P.W.12 Thimmarayappa consuming liquor by sitting beneath a tree and on seeing him, both invited him to join them, to consume liquor and on their invitation, he had joined them and started consuming liquor. While they were consuming, 48 the accused had disclosed them that he had committed some mistake stating that he had borrowed a sum of Rs.1000/- from Lakshmamma and failed to repay the same to her. So she had started threatening him stating that she would disclose the said fact to his family members and because of that, he had killed her and her dead body is lying in his mulberry garden. Therefore, the accused has made offer to himself (P.W.13 Rajappa) and P.W.12 - Thimmarayappa that he would pay Rs.500/- each, if they helped him in disposing off the dead body of Lakshmamma which is lying in the mulberry garden with regard to which P.W.13 has been cross-examined by the learned Counsel for the accused and nothing has been elicited and all the suggestions put to P.W.13 have been categorically denied and he has construed his evidence as per the examination-in-chief.
49
ix) Pledging of M.O.5 - pair of ear stud by the accused with P.W.14 on 24.10.2011 the date on which Lakshmamma was killed since her dead body was recovered on the next day on 25.10.2011 found lying in the mulberry garden of the accused clearly indicates that the accused was responsible for homicidal death of the deceased Lakshmamma. Admittedly, in the present case, the money transaction between the accused and deceased Lakshmamma as spoken to by P.W.13 can be believed as the accused had borrowed money from the deceased Lakshmamma which has been corroborated by the evidence of P.W.9 - Ramanna - husband of the deceased and P.W.3
- Kumari Keerthi, who has given her testimony with regard to last seen theory of deceased Lakshmamma in the company of accused and soon thereafter, the deceased Lakshmamma never returned to her house till evening. Only thereafter, the other family members started 50 searching her and only on the next day, they found the dead body of Lakshmamma lying in the mulberry garden of the accused.
All the above circumstantial evidence clearly establishes that the prosecution has proved its case beyond all reasonable doubt.
48. It is well settled that there is no embargo on the appellate court to review the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. 51
49. Keeping in view the above principle in mind, let us consider the main contention of the learned Counsel for the accused that as per the post mortem report Ex.P.11 - P.W.10, the doctor has opined that the death was due to asphyxia as a result of manual throttling which is marked as Ex.P.12(a) and as the same is without reference to the injuries, cannot be relied upon; and the post mortem report is against the charge framed on 6th August, 2013 to the effect that on or about 24.10.2011 at about 11.30 a.m. the accused while plucking mulberry leaves in the land of Somappa bearing Sy.No.40 of Chikka Kallahalli village, deceased Laxmamma approached him and demanded him to return the money with interest which he had borrowed from her and he having picked up quarrel with Laxmamma, assaulted her with a sickle on her neck intentionally and knowingly well that it would cause her death and thereby committed an offence punishable under Section 302 of Indian Penal Code and within the cognizance of the Court of Sessions; and in view of the fact that the charge framed is 'mugging' and the post 52 mortem report Ex.P.11 issued by the doctor - P.W.10 states that the death is due to 'throttling', the accused is liable to be acquitted by giving benefit of doubt. The said contentions cannot be accepted in view of the provisions of Section 299 of IPC which deals with 'Culpable homicide' which reads as under:
"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Explanation 1.--A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to 53 have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation 3.--The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born."
50. A careful reading of the said provision makes it clear that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 'Culpable homicide' is genus and 'murder' its specie. All murder is culpable homicide but not vice versa.
51. The circumstantial evidence and material documents produced by the prosecution clearly proves 54 that beyond all reasonable doubt the accused is involved in committing the homicidal death of the deceased Lakshmamma. Mere mentioning of the word 'Throttling' in postmortem report as per Ex.P.11 is not a ground to ignore the oral evidence of the doctor - P.W.10, who has deposed that on his examining the sickle with reference to the injuries found on the dead body of Lakshmamma, he had noted in his post mortem report - Ex.P.11 and accordingly, he has tendered his opinion as per Ex.P.12(a) which reads as follows:
"F ªÉÄð£À PÀÄqÀÄUÉÆî£ÀÄß wgÀÄV¹ PÀwÛ£À PɼÀ¨sÁUÀzÀ°è §®ªÁV CzÀÄ«ÄzÀgÉ ¸ÁAiÀÄĪÀ ¸ÁzsÀåvÉ EzÉ."
His signature is marked as Ex.P.12(b). The doctor has further stated that possibility of sustaining other external injuries as noticed by him on the dead body might be while the deceased tried to resist when the assailant had attacked her by putting pressure on her neck in order to kill her. With regard to suggestion that 55 it is possible to sustain such injuries on the neck portion, which he had noticed on the dead body, while a woman wearing Mangalya chain or any other thread like article around her neck, walks in the midst of mulberry crops, he has denied the same. He has also denied the suggestion that he is intentionally helping the prosecution. He has further deposed that it is not possible to sustain such injuries on the neck portion, if a person forcibly bends towards front and when sharp edge weapon of the mulberry plant comes in contact with the neck portion of such person. He has also denied the suggestion that since the upper portion of the sickle - M.O.3 is not having sharp edge, there is no possibility of sustaining such injury on the neck portion. He has denied the suggestion that M.O.3 - sickle was not sent to him to give his opinion; he has never examined that sickle and without seeing the same, he has given his opinion as per Ex.P.12(a). He has further denied that in order to help the prosecution, he is giving his report and opinion as per the request of the police; and is giving false evidence stating that the 56 external injuries noticed on the dead body could have been happened due to resistance shown by the deceased when the assailant attacked her and inflicted pressure on her neck. Further he has denied the suggestion that though he came to know during his postmortem examination that the death was caused due to Mangalya Chain and thread like chain worn by the deceased caught with the mulberry plant while she was walking in the midst of mulberry plants resulting in sustaining of such injuries on her neck portion by the deceased.
52. On careful perusal of the material documents - postmortem report Ex.P.11 and opinion of the doctor as per Ex.P.12, the evidence of the doctor is credible and trustworthy pointing to alternative possibilities not accepted as conclusive. The importance and primacy of the orality of the trial process and said evidence should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such 57 credibility. The evidence of the doctor must be tested for its inherent consistency and the inherent probability of the story. The consistency of evidence of the doctor with the account of other witnesses on circumstantial evidence i.e., P.W.3 - Kumari Keerthi, who has last seen the deceased in the company of the accused, P.W.9
- Ramanna - the husband of the deceased, who has spoken to with regard to money transaction between the deceased and accused and P.W.14 - Govinda Kumar, working as Sales man in the shop of Maruthi Jewelers and Pawn Brokers, with whom the accused had pledged M.O.5 - a pair of ear stud and P.W.13 - Rajappa, before whom the accused has made his extra judicial confession are corroborative and has to be held as creditworthy, consistency with the undisputed facts; the 'credit' of the witnesses, their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for cumulative evaluation. 58
53. It is true that Courts of law to judge the evidence before them by applying the well recognized test of basic human probabilities...... prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case.
54. It is well settled that in Law of Criminal Jurisprudence, a person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Admittedly in the present case, the circumstantial evidence of P.Ws.3, 4, 9, 10, 13, 14, 15, 16 and 17, material documents Exs.P.1 to 20 and material objects M.Os. 1 to 8 clearly depict that the prosecution has proved the charge framed against the accused beyond all reasonable doubt.
55. The provisions of Section 294 of Cr.P.C., does not refer to a document which even if exhibited 59 cannot be read in evidence as a substantive piece of evidence. While elaborating the submission that the postmortem report Ex.P.11 by itself proves nothing as it is not a substantive piece of evidence and on the other hand, it is only a previous statement of the doctor P.W.10, who conducted the postmortem examination on the dead body of the deceased and that it is the testimony of the doctor in Court which alone is the substantive evidence that the post mortem report can be used only to corroborate the evidence of the doctor in Court under Section 157 or for refreshing his memory under Section 159 of the Evidence Act or for contradicting his evidence in Court under Section 145 of the Evidence Act. Therefore, mere mentioning of the 'throttling' in Ex.P.11 - postmortem report cannot be a basis to acquit the accused as contended by the learned SPP. Admittedly as already stated supra, P.W.10-doctor has deposed that there is possibility of pressing the neck of the deceased by the accused using M.O.3 sickle which has been confirmed by his opinion - Ex.P.12 and is in conformity with the charge framed against the 60 accused. Therefore, the contention of the learned Counsel for the accused cannot be accepted.
56. The Hon'ble Supreme Court while considering the provisions of Section 3 of the Evidence Act, Section 300 of IPC and Section 176 of Cr.P.C. in the case of Madhu alias Madhuranatha -vs- State of Karnataka reported in AIR 2014 SC 394 at paragraphs 15 and 16 has held as under:
"15. A number of witnesses have deposed of seeing the deceased in the company of the appellants before the incident. In cases where the accused was last seen with the deceased victim (last seen together theory) just before the incident, it becomes the duty of the accused to explain the circumstances under which the death of the victim occurred. (Vide Nika Ram v. State of Himachal Pradesh, AIR 1972 SC 2077 and Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 : (1992 AIR SCW 1175))
16. It is obligatory on the part of the accused while being examined under Section 313 CrPC, to furnish some 61 explanation with respect to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence, to decide whether or not the chain of circumstances is complete. (Vide: Musheer Khan alias Badshah Khan & Anr. v. State of Madhya Pradesh : AIR 2010 SC 762: (2010 AIR SCW 996) ; and Dr. Sunil Clifford Daniel [Sunil Clifford Daniel v. State of Punjab, AIR (2013) SC (Cri) 193: 2012 AIR SCW 5180(supra))"
57. The Apex Court in the case of Jugendra Singh -vs- State of Uttar Pradesh reported in (2012)6 SCC 298 while considering the provisions of Sections 302 and 376 r/w Section 511 IPC., at paragraph-35, has held as under:
"35. The medical report clearly says that the death was caused due to asphyxia as a result of throttling. PW 4, the surgeon, who had conducted the autopsy, stated that the deceased was wearing a shirt. PW 1, the father, has stated that she was strangulated by a bush shirt. The learned 62 trial Judge has given much emphasis by drawing a distinction between a shirt and a bush shirt. The High Court has treated that it is not a material contradiction. In the FIR, it was clearly mentioned that the accused strangulated the deceased with the help of her shirt. The medical report supports the same and, therefore, the nature of the shirt which has been given importance by the learned trial Judge, in our considered opinion, has been rightly not accepted."
58. The learned Counsel for the accused relied upon the dictum of the Hon'ble Supreme Court in the case of Machindra -vs- Sajjan Galfa Rankhamb and Others reported in (2017)13 SCC 491 in support of his contention that the postmortem report Ex.P.11 is inconsistent with the charge framed and therefore, the accused is entitled for acquittal by giving benefit of doubt. The above said judgment is with reference to a case where the Sessions Court had convicted the accused under the provisions of Section 302 r/w 34 of IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs.1,000/- each, in default of 63 payment of fine, to suffer further imprisonment for two months against which criminal appeal was preferred by the accused before the High Court of Judicature at Bombay, Bench at Aurangabad where the said appeal was allowed and the judgment and order of conviction and sentence passed by the Sessions Court was set and the accused were acquitted for the offence punishable under Section 302 r/w 34 of IPC against which an appeal was preferred before the Apex Court by the complainant. It is to be noted that where certain material witnesses have not been examined and cause of injuries was not stated nor any opinion was formed to create independent testimony, the Expert's opinion should be demonstrative and should be supported by convincing reasons. Under those circumstances, as there was absolutely no material against the accused, the Hon'ble Supreme Court acquitted the accused. But admittedly in the present case, all the material witnesses examined including the child witness - P.W.3, who has last seen the deceased Lakshmamma in the company of the accused, P.W.14 with whom a pair of 64 ear stud of the deceased was pledged by the accused, P.W.13 - Rajappa before whom extra judicial confession statement was made coupled with the voluntary statement of the accused Ex.P.19 clearly depicts that the prosecution has proved its case beyond all reasonable doubt. Therefore, the said case has no application to the facts and circumstances of the present case.
59. The other judgment relied upon by the learned Counsel for the accused is Javed Abdul Rajjaq Shaikh -vs- State of Maharashtra reported in (2019)10 SCC 778 with the regard to circumstantial evidence and the medical evidence of throttling, strangulation and hanging where the trial Court based on the circumstantial evidence had convicted the accused, his parents and brother under Section 302 r/w 34 and 498-A IPC and on the appeal filed by the accused the High Court had convicted only the accused under the provisions of Section 302 of IPC and acquitted other accused persons believing the evidence of the doctor. 65 The said case has no application to the facts and circumstances of the present case.
60. Admittedly in the present case, there is no dispute with regard to money transaction between the accused and the deceased as spoken to by P.Ws.9, 13 and recovery of material object - M.O.5 on the basis of the evidence of P.W.14 at the instance of the accused. Though the voluntary statement of the accused has been recorded under the provisions of Section 313 Cr.P.C., he has neither taken any defence nor has specifically set up any case. All the questions put to the accused with regard to incriminating circumstances against him have been totally denied. When it is noticed that the death has taken place due to throttling or mugging as contended by the prosecution, then the accused must have proved how the deceased died while being examined under Section 313 Cr.P.C. He has also not explained about the death of the deceased. Therefore, the point that the death of the deceased Lakshmamma was homicidal is found to be established. 66
61. The evidence of P.W.10 - Dr. Manjunatha Swamy - the doctor, who has conducted the post mortem examination on the dead body of the deceased has stated about the cause of death. His report - Ex.P.11 and opinion Ex.P.12 are corroborated by his positive evidence which is treated as expert opinion based on the actual and factual, cannot be ignored. As stated supra, the accused has not discharged his initial burden since P.W.3 - the child witnesses has spoken to that she has seen the last seen together the deceased and the accused on 24.10.2011 and immediately on the next day, the dead body of deceased Lakshmamma was found in the mulberry garden of the accused.
62. With regard the contention of the learned Counsel for the accused that there is delay in recording the statement of P.Ws.3 and 4 by the police which has not been explained and since the evidence of P.Ws.3 and 4 is doubtful, the same cannot be relied upon. On careful perusal of the material on record clearly depicts that the incident occurred on 24.10.2011, complaint 67 was lodged on 25.10.2011 at 9.00 a.m., and the inquest mahazar was drawn on the same day between 10.30 a.m. to 1.00 p.m. In the inquest mahazar at paragraph 4 - as to who, when and along with whom the deceased Lakshmamma was last seen, it is specifically stated by Keerthi - P.W.3 that on 24.10.2011 in the morning at 11.00 a.m. she had last seen Lakshmamma in Mulberry Garden cutting the grass for cattle, when she had been to give the phone. The accused was arrested on 25.10.2011 at about 10 pm. Hence, there is no delay in lodging the complaint and therefore, the contention of the learned Counsel for the accused cannot be accepted.
63. So far as the contention of the learned Counsel for the accused that the evidence of P.W.3 - the child/chance witness cannot be accepted is concerned, the learned Sessions Judge before recording her evidence has satisfied himself that whether she is capable of giving evidence before the Court and she has given suitable and proper reply to the questions put by the Court. Therefore, the Court after confirming that 68 she has got the capacity to give evidence as she is aware about the importance of telling the truth, the prosecution was permitted to examine P.W.3 on behalf of its case. P.W.3 in her evidence has categorically stated that, when she had been to mulberry garden of the accused to hand over the cordless phone from the house of the deceased Lakshmamma, where Lakshmamma was cutting the grass, she had last seen the deceased in the company of the accused in the mulberry garden of the accused. This last seen theory is neither dislodged by the accused nor he has taken any specific defence while recording his statement under Section 313 of Cr.P.C. Except total denial of the prosecution case and an explanation of false implication due to some monetary transactions, he has not led any evidence nor probablised his the case with regard to the incriminating evidence given against him.
64. The Hon'ble Supreme Court while defining attributes of a 'chance witness' in the case of Puran -vs- The State of Punjab reported in AIR 1953 SC 459, it was 69 held that such witnesses have the habit of appearing suddenly on the scene when something is happening and then disappearing after noticing the occurrence about which they are called later on to give evidence. Therefore, the judgment relied upon by the learned Counsel for the appellant stated supra is not applicable to the facts and circumstances of the present case. Admittedly in the present case as on the date of the incident, P.W.3 had last seen together the deceased in the company of the accused and her statement that the police apprehended the accused and recovered M.O.1 - cordless phone, M.O.2 -ele adike cheela (small cloth bag), M.O.3 - sickle, M.O.4 one currency note of Rs.500/-, M.O.5 - one pair of ear stud from P.W.14 Govinda Kumar at his instance clearly go to show that the testimony of P.W.3 regarding her last seen theory cannot be discarded as she has naturally appeared on the scene when something is happening and disappeared later. Therefore, the contention of the learned Counsel for the accused that P.W.3 is a chance witness and, her evidence without corroboration cannot 70 be relied upon to convict the accused, cannot be accepted.
65. Though the learned Counsel for the accused relied upon the dictum of the Hon'ble Supreme Court in the case of Ganapat Singh -vs- State of Madhya Pradesh reported in (2017)16 SCC 353 with regard to the evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead is so minimal to exclude the possibility of a supervening event involving the death at the hands of another, the fact remains that the said judgment has no application to the facts and circumstances of the present case. Admittedly, in the present case, the circumstances of last seen together accused with the deceased by P.Ws.3 and 4, the grand daughter of the deceased, who is natural witness and the same is supported by the evidence of P.W.4 - the mother of P.W.3 regarding the death of the deceased in the 71 mulberry garden of the deceased. The accused had a motive to eliminate the deceased as stated by P.Ws.9 and 13. The recovery of M.O.5 from P.W.14 and M.Os.1 to 4 at the spot as per the inquest mahazar and extra judicial confession made by the accused before the P.W.13 when taken cumulatively forms a complete chain and there is no escape from the conclusion that within all human probability, the crime was committed by the accused. Therefore, the said judgment relied upon by the learned Counsel for the accused has no application to the facts and circumstances of the present case.
66. Though the learned Counsel relied upon the judgment of the Hon'ble Supreme Court in the case of Javed Abdul Rajjaq Shaikh -vs- State of Maharashtra reported in (2019)10 SCC 778 with regard to difference between the definition of 'throttling' and 'hanging', this Court has no quarrel with regard to the law declared by the Hon'ble Supreme Court. At the outset we would like to emphasise that Modi on Medical Jurisprudence and 72 Toxicology, 25th Edition has defined the 'strangulation' as the compression of the neck by a force other than hanging. Weight of the body has nothing to do with strangulation. 'Ligature strangulation' is a violent form of death, which results from constricting the neck by means of a ligature or by any other means without suspending the body. When constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling. When strangulation is brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substances, it is known as mugging (strangle hold).
The different types of strangulations includes:
i) Strangulation - by Ligature
ii) Throttling - manual strangulation/
compressing with hands
iii) Mugging - compressing with forearm or foot or wrist or some other solid substances
iv) Bansdola (wooden stick is used to compress the neck) 73
v) Garrotting = A rope or a loincloth and a wooden stick as a lever to tighter the ligation is used)
vi) Accidental strangulation (can arise in the course of a person's occupation when a neck tie or scarf is caught in moving machinery Therefore, it is clear that 'mugging is when strangulation is brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substances. The evidence of medical officer - P.W.10 is consistent with the distinction between throttling and strangulation as stated by him in his evidence and his opinion as per Ex.P.12 which is in corroboration with the charge framed against the accused.
67. Apart from the medical evidence as stated supra, the other circumstantial evidence clearly indicates that the accused has committed the murder of the deceased, but he has sought to build up a case that he has been falsely implicated in the crime. Infact, in 74 his statement recorded under Section 313 Cr.P.C., absolutely no foundation is laid for the same. In the absence of any such foundation laid, we find rather difficult to consider even the plea of false implication especially when the evidence of P.Ws.3, 4, 9, 13 and 14 cogently implicate the accused as the culprit.
68. In view of the circumstantial and positive evidence adduced by the prosecution witnesses and material documents including the inquest report regarding the injuries mentioned therein, the postmortem report and the opinion expressed by the doctor P.W.10 as per Ex.P.12 clearly indicate that the accused on the demand made by the deceased to return the money with interest which he had been borrowed, had picked up a quarrel with her and committed the murder of the deceased intentionally and knowingly that assaulting her with sickle on her neck would cause her death and thereby committed an offence punishable under the provisions of Section 302 of IPC. 75
69. Taking into consideration all these circumstances cumulatively, we find that the trial Court was justified in arriving at the conclusion that it was the accused and accused alone, who committed the crime in question. On re-appreciation of the entire oral and documentary evidence, we find that the conclusion arrived at by the trial Court is neither illegal nor perverse. Hence, we find no reasons to disturb with the well considered judgment and order of conviction passed by the Sessions Court.
VII - Conclusion
70. For the aforesaid reasons, with regard to first point, the accused has not made out any case to interfere with the impugned judgment and order of conviction under the provisions of Section 302 of IPC sentencing him to undergo imprisonment for life and in so far as second point, the State has made out its case that the learned Sessions Judge has committed an error in non-imposition of fine against the accused while sentencing him for life as mandated under the 76 provisions of Section 302 of IPC. Accordingly, we pass the following:
ORDER
i) Criminal Appeal No. 171/2015 filed by the accused is dismissed.
ii) Criminal Appeal No.820/2015 filed by the State against non-imposition of fine for the offence punishable under Section 302 of IPC is allowed.
iii) The impugned judgment and order of conviction and sentence dated 28.1.2015 made in S.C.No.13/2012 on the file of the Principal District and Sessions Judge, Kolar, convicting the accused for the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life is confirmed and further he is sentenced to pay a fine of Rs.5,000/- (Rupees five thousand 77 only) and in default of payment of fine, to undergo further Simple Imprisonment for a period of two years.
Sd/-
JUDGE Sd/-
JUDGE Nsu/-