Karnataka High Court
Mallikarjun S/O Chandrasha Jabanna vs The State Of Karnataka on 5 September, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 05TH DAY OF SEPTEMBER, 2017
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL No.3507/2011
BETWEEN:
Mallikarjun S/o Chandrasha Jabanna,
Age 35 years, Occ. Coolie,
R/o Bhankur, Tq. Chittapur,
Dist. Gulbarga.
... Appellant
(By Sri Jambayya Swami Hiremath Advocate)
AND:
The State of Karnataka
Represented by the
Public Prosecutor,
High Court of Karnataka,
Circuit Bench,
Gulbarga.
... Respondent
(By Sri Prakash Yeli, Addl. S.P.P.)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CRIMINAL PROCEDURE CODE, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 24.09.2010,
PASSED IN S.C.NO.72/2010, ON THE FILE OF III ADDL.
SESSIONS JUDGE AT GULBARGA, CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF INDIAN PENAL CODE AND
CONVICTING THE APPELLANT/ACCUSED BY SENTENCING
TO UNDERGO RIGOROUS IMPRISONMENT FOR LIFE AND
TO PAY A FINE OF RS.10,000/-, IN DEFAULT HE SHALL
UNDERGO SIMPLE IMPRISONMENT FOR SIX MONTHS FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF
INDIAN PENAL CODE.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, N.K.SUDHINDRARAO J., DELIVERED THE
FOLLOWING :-
JUDGMENT
The appeal is directed against the judgment passed by the learned III Addl. Sessions Judge, Gulbarga in Session Case No.72/2010, for the offence punishable under Section 302 of the Indian Penal Code, wherein the appellant-accused was convicted for the said offence and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo further simple imprisonment for six months. 3
2. The appellant-accused is in judicial custody.
3. The facts unfurled on opening the case file are that, a criminal case in Cr.No.129/2009 was registered by the Shahabad Town Police for the offence punishable under Section 302 of Indian Penal Code on 25.10.2009 at 10.00 a.m. on the complaint-Ex.P.9 lodged by Smt. Ratnamma stating that one Mallikarjun caused the murder of her husband-Subhash Allolli at about 7.00 a.m. on the same day. The background fact of the complaint is that complainant's husband Subhash had two wives including the complainant. The other one is Mallamma. Added to it, it is stated that very often Subhash, her husband used to go to neighbouring house and had extramarital affairs with Parvathi, wife of accused. The extramarital affairs in substance is not disputed. It is also stated that the neighbouring lady Parvathi was issueless and that when the complainant 4 objected, even her mother-in-law encouraged the illicit affairs. Three months earlier to the incident, one day the Subhash and the wife of accused Parvathi were seen in a compromising position near the house of Parvathi at cattle shed and on sighting the accused, they ran away. In this background, on the date of incident, the accused was in his house, and both the houses of complainant and the accused are facing each other on the opposite directions of the road.
4. On the date of incident, Subhash was carrying a water from nearby tap and was holding one pot on the shoulder and the another one in the hand. It was at that time, complainant was at the scene and accused-Mallikarjun, the husband of Parvathi attacked Subhash by hitting with axe on the backside of the neck twice and the third one causing serious bleeding injuries and the complainant screamed, wanted to 5 rescue but she could not and her husband Subhash could not speak and succumbed to the injuries.
5. A criminal case was registered against the accused. On investigation, the final report was submitted for the offence punishable under Section 302 of Indian Penal Code.
6. On the case being committed, after hearing the accused, charge was framed for the offence punishable under Section 302 of Indian Penal Code by the learned Sessions Judge.
7. The offence being one punishable under Section 302 of Indian Penal Code, it is incumbent on the part of the prosecution to establish that the death of Subhash on 25.10.2009 is a homicidal and not a natural one.
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8. In this connection the testimony of the complaint-Ex.P.9, inquest mahazar Ex.P.3, post mortem report Ex.P.7, photographs of the dead body of Subhash Ex.P.12 showing grave injuries on the back side of the neck and cloths and substantial portion of the body being choked in blood speak by themselves, that the death was never natural one, on the other hand, a homicide. The trial court rightly has held that the death of Subhash was a homicide.
9. Nextly, it is also incumbent on the part of the prosecution to establish that the appellant-accused committed the homicide of Subhash by hitting with axe and committed the offence punishable under Section 302 of Indian Penal Code.
10. In this connection, the prosecution has examined witnesses P.Ws-1 to 16, including the 7 complainant and relied on exhibits Exs.P1 to P-14 and the material objections M.Os.1 to 12.
11. Prominent among the witnesses examined, complainant Ratnamma PW-8 is the wife of Subhash, P.W-1-Basavaraj and P.W-5 - Shivasharana are mahazar witnesses. PW-2 Hanumantraya is circumstantial witness, PW-3 Kalyani witness to the inquest mahazar P.W4 - Kareppa is witnesses to the spot mahzar, PW6 - Mazar Ali Khan, Assistant Engineer who prepared the sketch of scene of offence, P.W-7 Dr.Md.Wasim Saheb is the Medical Officer who conducted the post-mortem examination on the dead body. PW-8 Ratnamma is the complainant and P.W-9 Mallamma is another wife of deceased Subhash, P.W-10 Sabanna is the brother of the complainant, P.W-11 Baswantraya is said to be the person with whom accused had expressed his grievance of illicit affair and 8 PWs-12 to 16 are the police officials who performed their duty in the investigation.
12. Learned counsel for appellant/accused would submit that the motive is not established by the prosecution and there was no occasion for the accused to commit the murder of Subhash. The learned counsel Sri Jambayya Swami Hiremath, for the appellant/accused further submits that even if the allegations are presumed, no husband would tolerate continued extramarital affair of his wife with another man more particularly the neighbour to such an extent. The learned counsel would further emphasize that the witnesses examined are not at all independent witnesses, on the other hand, PW8 and PW9 Ratnamma and Mallamma are the wives of the deceased Subhash and another one PW11 Basawantaraya is brother of complainant and they are hearsay witnesses and they 9 are not trustworthy witnesses in the facts and circumstances of the case.
13. Learned Addl. State Public Prosecutor would submit that the dead body, its posture has found in the inquest mahazar and the injuries observed in the post mortem report speak by themselves that a clear cut homicide wherein Subhash was done to death and there were the circumstances pointed out that except the accused Mallikarjuna, nobody would have any occasion or even a semblance of vengeance or intention to do away with the life of Subhas.
14. In this connection it is to be seen that Ratnamma the complainant is the wife of Subhash. Her testimony in complaint Ex.P.9 does not appear to be exaggeration or imagination. Ratnamma and Mallamma are the wives of Subhash, who had extra marital affair with Parvathi wife of the accused. It is also a fact at one 10 point that the accused during trial has reason to believe that Subhash being womanized had antagonized many and any one of them might have committed the crime. Subhash also had two wives, they claim that he started illicit affair with Parvathi wife of the accused to the ire of her husband, more particularly Parvathi was said to be issueless and that also one of the reasons she was taken for the development of illicit affair. It is also stated by the complainant that when she questioned why her husband was going to the house of Parvathi, her maternal aunt, mother of the accused said that she is right and from the circumstances she could gather that illicit affair was also the result of the issuelessness to Parvathi from the accused and incidentally one day, three months prior to the incident, the accused had sighted Parvathi and Subhash were caught red-handed in compromising pasture but ran away from the spot. 11
15. In this connection, Mallikarjun was frustrated and had anguish on the accused. Basawantraya - PW11 is the person who was examined not as an eyewitness, but to explain the circumstances that the accused had complained against Subhash regarding the illicit affair between his wife and the accused and his further evidence is that he had advised both accused Mallikarjuna and deceased Subhash in this regard and the deceased Subhash also apologized and undertook that he would mend his behavior and not interfere in the life of Parvathi and accused.
16. PW10 - Sabanna is the brother of the complainant and he incidentally had come to the village and the place, which circumstance cannot be unbelievable. His evidence is that after hearing the screaming, he came to the spot and saw the accused attacking to do away the life of Subhash with the help of 12 axe, which is marked as M.O.1. Ex.P.4 is the spot mahazar and Ex.P.5 is the mahzar under which the clothes were seized.
17. PW1 - Basawaraj is the mahazar witness, PW2 Hanumantraya do not support to the case of the prosecution.
18. PW9 - Mallamma is the second wife of deceased Subhash who speaks regarding circumstances also says that she came and saw the incident of the accused attacking Subhash. However, learned counsel for accused brought to the notice of the court regarding variation between the evidence of complainant and Mallamma - P.W-9 regarding the deceased bringing water, one pot on the shoulder another one holding by hand. However, it is to be seen that in the circumstances, this particular variation assumes little significance and PW2 -Hanmantharaya is the person in 13 front of whose house the incident has happened, when Subhas was bringing water to his house, and when he was passing in front of house of Hanmantharaya, which is in between the water tap and his house, he was attacked and done to death. This witness in his evidence states that he has not seen the incident, however, he says that Subhash was done to death by the accused. This man is not an eye witness, however speaks of the circumstances.
19. PW10 - Sabanna, brother of the complainant in the capacity of the witness speaks to the circumstances how he was present and had come to see his sister also and was on his way to tea stall the incident happened wherein Subhash was done to death by the accused.
20. The wife of the accused complainant identifies the axe and thus, the other instances are 14 conducting of mahazars, carrying the dead body by the police constable, then handing it over to the doctor, collecting back the cloths after handing over dead body to its relatives, producing them and sending some of the seized items for chemical examinations to the FSL and the evidence of Investigating Officer is formality of taking over the investigation, conducting spot mahazar, inquest mahazar, recording the statements of witnesses during inquest and examining the other witnesses, requesting the PWD Engineer for preparing the sketch of place of offence and recovery mahazar of the weapon, clothes from the accused.
21. It is in this connection, the learned counsel for the appellant would submit that recovery mahazar is not established. But the weapon used in the offence is axe. It is to be examined that Forensic Science report on comparing axe and the cloths, they prevail over the 15 evidence of hostile witnesses to the mahazar and according to the seizure mahazar the accused produced the axe from his house. However, the witnesses who testify for having seen the incident and accused running away. Thus, the factors that are established by now are residing of the accused and the complainant who is the wife of the deceased situated each in front of the other, the weapon used being examined by the FSL. Seizure of the blood stained cloths and they being subjected to chemical examination, the illicit affairs of the deceased during his life time with the wife of the accused, the relation of accused and Parvati, so also of Subhash with his wives Ratnamma and Mallamma.
22. When it is analyzed in the background of post mortem wherein the doctor coming to the opinion that the death might have been taken place 8 to 10 hours earlier to post mortem. Thus, it is established 16 beyond any shadow of doubt that for few seconds prior to time of death, Subhash was seen healthy in front of the house at the spot the persons present complainant the wife of Subhash, presence of accused as the Axe MO and the incident happened in seconds but not more than a minute wherein he died and the death being a homicide. In the light of her affairs, the non- examination of Parvathi does not leave impact.
23. The presence of the complainant Rathnamma, accused with weapon MO-1 axe fuming against Subhash who had illegal affair of the latter with the wife of the former, incident of Subash and Parvathi being caught red handed and escaping, Subash not heeding to the advice, chemical examination of the weapon, blood stained cloths, cause of death as revealed by postmortem report Ex.P-7, the version of the complainant having seen the murder of her husband 17 Subash and the versions of the rest of witness when considered would reveal that except the accused, none had an occasion with anger on Subash or the vengeance to commit murder.
24. In this connection, the learned counsel appellant would submit that nobody for that matter would be serious or get provoked when his wife was found in a comprising position with the other man, more particularly whom he see very often as a neighbour.
25. Thus, the accused was boiling out of anger and provocation because of the act of the deceased. On the other hand, three months he used it for the purpose of thinking, planning or laying strategy for committing the murder of Subhash and the ideal time for him was to see Subhash being available carrying a water pot on his shoulder and another in the hand, in the absence of 18 passers by he had stock of anguish and also a weapon conducive for the offence and inflicted such kind of injury with M.O.1 on Subhash to leave any chances for survival and he meant precisely to eliminate and did so.
26. At the fag end of the submission, the learned counsel for the appellant would also point out that the sighting of the accused in compromising was on previous day. But it is nobody's guess before the trial Court in the evidence nor the suggestion nor there any circumstance to find with that direction. Thus, in all probabilities, certainties, the oral and documentary evidence and the material objects, sequences of the events prove that on 25.10.2009 at 7.30 AM in front of the house of one Hanumantrao Kuntoji at Bhankur village, the appellant - accused murdered Subhash to commit offence as defined under section 300 punishable under section 302 of Indian Penal Code. 19
27. The learned counsel for appellant would submits to show lenience in the sentence, which is not possible in law as well. The punishment being the life or death and the accused has been already the beneficiary, as he is sentenced to minimum punishment and there cannot be a lesser punishment.
28. There was no grave and sudden provocation which could have come to his rescue. Thus he had prepared and engineered the thought and executed against Subhash beyond reasonable doubt.
29. Thus, we find no infirmity, defects or lapses in the judgment of the learned III Addl. Sessions Judge at Gulbarga in S.C.No.72/2010 dated 24.09.2010, wherein the appellant - accused held guilty and sentenced to imprisonment for life for the offence punishable under Section 302 of Indian Penal Code.
Hence the;
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ORDER Appeal is dismissed.
The judgment of conviction and sentence passed by the learned III Addl. Sessions Judge, Kalaburagi in Sessions Case No.72/2010 on 24.09.2010 is confirmed.
Sd/-
JUDGE Sd/-
JUDGE NSP/SN