Karnataka High Court
R.Armugam S/O Late Rama vs The State Of Karnataka on 28 January, 2013
Bench: K.L.Manjunath, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28th DAY OF JANUARY, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE H.S.KEMPANNA
CRIMINAL APPEAL NO.472/2009(C)
BETWEEN
1 R.ARMUGAM
S/O LATE RAMA
ADULT HOUSE NO.62, 13TH CROSS
AMBEDKAR COLONY,
ASHOKAPURAM,
MYSORE (IN J C)
... APPELLANT
(By Sri : GANGADHAR SANGOLLI, ADV. )
AND :
1 THE STATE OF KARNATAKA
BY ASHOKAPURAM POLICE
MYSORE DIST
... RESPONDENT
(By Sri: P.M. NAWAZ, ADDL.SPP )
THIS CRL.A. FILED U/S.374(2) CR.P.C BY THE
ADV. FOR THE APPALLANT PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE JUDGMENT OF CONVICTION AND SENTENCE DT:
07.01.2009 PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE, MYSORE IN S.C.NO. 281 OF 2007 -
CONVICTING THE APPELLANT/ACCUSED FOR
OFFENCE P/U/S 302 OF IPC AND SENTENCED TO
UNDERGO LIFE IMPRISONMENT AND SHALL ALSO
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PAY FINE OF RS. 5,000/- IN DEFAULT TO PAY FINE
AMOUNT, TO UNDERGO SIMPLE IMPRISONMENT FOR
A PERIOD OF SIX MONTHS.
THIS APPEAL COMING ON FOR HEARING THIS
DAY, MANJUNATH J, DELIVERED THE FOLLOWING:
JUDGMENT
The appellant is questioning the legality and correctness of the Judgment of conviction and order of sentence passed by the III Addl. District & Sessions Judge, Mysore dt. 7.1.2009 passed in S.C.No.281/2007.
2. The appellant was tried for the offence punishable under section 302 of IPC. and convicted for the aforesaid offence and sentenced to undergo Imprisonment for Life and to pay fine of Rs.5,000/-, in default to pay fine amount, to undergo Simple Imprisonment for a period of six months.
3. It is the case of the prosecution that on 3.9.2007 at about 10.00 p.m. the appellant demanded money from his wife Lakshmi as she refused to pay, he strangulated her neck and smothered her with a pillow and she died due to Asphyxia which was witnessed by PW6 elder son of the appellant and the deceased. It is 3 the further case of the prosecution that on 4.9.2007 at about 9.00 a.m. the appellant went along with his second son to CCB Unit, Mysore and informed PW1 Sannabyra, H.C. 357, narrated the incident and his statement was recorded by PW1 as per Ex.P1 and the same was registered in Crime No.48/07 by the Ashokapuram Police, Mysore, for the offence punishable u/s 302 of IPC. Thereafter, the Police recorded the confession statement of the appellant and based on his statement he was taken to his house where the dead body of his wife was lying at No.62, 13th Cross, Ambedkar colony, Ashokapuram, Mysore. The Inquest Mahazar was conducted in the presence of pancha. The pillow used for smothering - MO1 was seized and later the dead body was sent for PM and Autopsy was conducted by PW18 Dr. Kumar and the clothes of the deceased were seized and sent for FSL.
4. The appellant was arrested on 4.9.2007 and since then he is in judicial custody. The appellant not pleaded guilty and claims to be tried.
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5. In order to bring home the guilt of the accused, the prosecution relied upon the evidence of PWs.1 to 18 and Exs.P1 to P27 and MOs.1 to 7. After closure of the evidence of the prosecution, statement was recorded under section 313 Cr.P.C. wherein the appellant denied incriminating circumstances let in by the prosecution. His defence was total denial and no defence evidence was let in by the appellant. After considering the arguments advanced by the Public Prosecutor and the defence counsel, the Sessions Court formulated the following points for its consideration:
1) Whether the prosecution proves beyond reasonable doubt that on 3.9.2007 at 10.00 P.M. within the limits of Ashokapuram Police Station, Mysore at house No.62, 13th cross, Ambedkar colony, Ashokapuram, Mysore the accused due to previous illwill with his wife deceased Lakshmi, demanded her to pay some amount and when she refused to give the same, he quarreled with her and made her to fall on the ground and strangulated her neck and when she tried to scream loudly, picked up a pillow which was lying nearby and covered the same on her face and pressed the same on her face and neck by using pressure and 5 she died later and thereby the accused has committed an offence punishable under Section 302 of IPC?
2) What order?
6. After considering the entire case on merits, the learned Sessions Judge held point-1 in affirmative and came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt. Accordingly, he was convicted for the offence punishable under section 302 of IPC. After hearing the accused, he has been sentenced to undergo Imprisonment for Life and to pay fine of Rs.5,000/- and in default to pay fine, to undergo SI for a period of six months. This Judgment of conviction and order of sentence is called in question in this appeal.
7. We have heard Mr. Sangolli, learned counsel for the appellant and Mr. Nawaz, Addl. S.P.P. for the State.
8. The main contention of the appellant's counsel is that the Sessions Court has committed serious error in holding that the prosecution has proved the guilt of the accused beyond reasonable doubt. According to him, the Sessions Court has committed an error in not 6 appreciating the evidence properly and on account of the wrong appreciation, the appellant has been convicted erroneously by the Sessions Court. It is his case that the evidence of PW6 Devaraj, minor son of the appellant, does not inspire confidence in the mind of the court and his evidence could not have been believed by the court and based on wrong appreciation of evidence of PW6, the appellant has been convicted. According to him, the Sessions Court has failed to note that the deceased died on account of Asphyxia due to Epilepsy and not on account of smothering. He further contends the prosecution has failed to prove the recovery of MO1, the pillow said to have been used for commission of offence because the Mahazar witnesses for having recovered MO1 have not supported the case of the prosecution. It is also the case of the appellant that there is an improvement in the case of the prosecution and that there is a delay in sending the FIR to the Magistrate. On account of delay in sending the FIR to the Magistrate, the entire case of the Prosecution has to be disbelieved. In the circumstances, he 7 requests the court to re-appreciate the entire evidence and reverse the findings of the Sessions Court.
9. Per contra, the Learned Addl. SPP for the state submits that none of the grounds urged by the appellant are tenable because the prosecution has proved the guilt of the accused beyond reasonable doubt by examining PW6, an eye witness who is none other than the son of the appellant. Before recording the evidence of PW6, the Sessions Court has taken all precautionary measure to find out whether PW6 was tutored or not and whether he is capable of understanding the questions and his capability to reply. According to him, the evidence of PW6 corroborates with the evidence of PW18 Dr.Kumar who has conducted Autopsy and issued PM report as per Ex.P25. The Trial court has rightly appreciated the evidence of PW6 and PW18 along with other evidence. Ex.P1 was dispatched by the Police at 11.00 a.m. on 4.9.2007 and merely because there is a delay in reaching the Magistrate, cannot be a ground to reject the case of the Prosecution in toto. According to him, the evidence of PW6 is so 8 natural which has rightly inspired the confidence of the court. In the circumstances, he requests the court to dismiss the appeal.
10. Having heard the counsel for the parties, the only point to be considered by us in this appeal is:
"Whether the appreciation of the evidence by the Sessions Court and convicting the appellant for the offence punishable under sec.302 of IPC calls for any interference and whether the appreciation of evidence is perverse?"
11. It is not in dispute that the appellant had married deceased Lakshmi. It was a love marriage and in the marriage the appellant and deceased have two children. PW6 Devaraj is the elder son. On the date of the incident, the younger son was aged about 4 years. It is the case of the prosecution that at about 10.00 p.m. in the night on 3.9.2007 the appellant demanded money from his wife, when she refused, the appellant took the MO1 and smothered her and she died due to Asphyxia. On 4.9.2007 at about 9.00 a.m. the 9 appellant along with his younger son went to PW1 and narrated the incident. Accordingly, Ex.P1 was recorded by PW1 who has set the law into motion. Based on the statement given by the appellant, the appellant was taken by the Police to his house where the dead body of his wife was lying and Inquest was drawn and MO1 was seized. To prove that the relationship between the deceased Lakshmi and the appellant was strained, the prosecution has relied upon the evidence of the parents of the deceased who have been examined as PW7 Kannan. PW12 Palaniyamma and so also the sister of the deceased, Cheluvi who has been examined as PW8 and Lokesha, the brother of the deceased as PW9 and so also the co-brother of the appellant as PW10 Raju.
12. We have seen the evidence of PW6, elder son of the accused who is the only eye witness to the incidence. At the time of the incident he was 8 years old. He has been cross-examined at length. His evidence has not been shaken by the defence counsel. His evidence is so consistent and that he has deposed before the court that on the date of the incident, his 10 younger brother was sleeping, the appellant had brought idli to his mother and when his mother was eating idli, the appellant demanded the deceased to give some money, since she had no money, she did not give money to him. Immediately appellant pushed the deceased on the floor and with the help of MO1 he committed the murder of the deceased. This evidence is supported by the evidence of Dr.Kumar who has conducted Autopsy and as per Ex.P25 PM report deceased Lakshmi died due to Asphyxia as a result of pressure over the neck. The defence of the appellant is that his wife was suffering from Epilepsy and she died due to Epileptic attack which has been denied by PW6 and also the Doctor. It is no doubt true that PW6 Devaraj has admitted in his evidence that his mother was suffering from Epilepsy and that his father was getting tablets to his mother. He has denied the suggestion of the appellant that his mother died due to Epilepsy. He has also deposed in his evidence that his father had lot of love and affection for him and that deceased had more love and affection towards his 11 younger brother. The sister of the deceased, Cheluvi PW8, the mother of the deceased, Palaniyamma PW12, the brother of the deceased PW9, have categorically deposed before the court that all was not well between the appellant and the deceased and that they used to quarrel each other.
13. When the evidence of PW6 and PW18 Dr.Kumar is not seriously challenged, it is difficult for us to believe the case of the appellant that his wife died due to Epileptic attack. There was ample opportunity for the appellant to cross-examine PW18 Dr.Kumar, to show that death of the deceased was not due to smothering. Therefore, it is difficult for us to accept the arguments advanced by Mr.Sangolli. It is also his case that PW1 has recorded the statement as per Ex.P1 which is in kannada, which language is not known to the appellant. This argument also cannot be accepted by us because the appellant knows to read and write kannada, while answering the charge, he has signed in kannada only. This fact is not disputed by Sri.Sangolli. There are no reasons for PW1 to record the statement as 12 per Ex.P1 as it is not the case of the appellant that PW1 had any ill-will against him. It is also not the case of the appellant that Ex.P1 has been recorded by PW1 at the instance of the persons who are inimically disposed towards the appellant.
14. We have also seen Ex.P1, where it is mentioned that FIR was dispatched to the Magistrate at 11.00 a.m. on 4.9.2007. Endorsement further reads that it has reached the Magistrate at 7.00 p.m. on that day. It is no doubt true that the prosecution has not explained the delay in receipt of FIR by the Magistrate. But the appellant had ample opportunity to cross- examine IO - PW17, the reasons for delay in FIR reaching the Magistrate though the same was dispatched at 11.00 a.m. on 4.9.2007. Viewed from any angle, we are of the view that the appreciation of evidence by the Sessions Court is just and proper and cannot be held as perverse and in such circumstances, if the Sessions Court has convicted the appellant, for offence punishable under section 302 of IPC, this court cannot interfere with the same.
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15. In the result, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Ak