Karnataka High Court
D Ramesha S/O Kalegowda vs State Of Karnataka By Lashkar Police on 12 March, 2013
Bench: Mohan.M.Shantanagoudar, B.S.Indrakala
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
TH
DATED THIS THE 12 DAY OF MARCH, 2013
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MRS.JUSTICE B.S.INDRAKALA
CRIMINAL APPEAL NO.27/2009
BETWEEN :
D. Ramesha
S/o Kalegowda
Resident of No.293
Car Driver, Bazaar Lane
K.R. Sagar, S.R. Patna Taluk
Mandya District. ..Appellant
(By Sri A.H. Bhagawan & A.N. Radhakrishna, Advs.,)
AND :
State of Karnataka
By Lashkar Police Station
Mysore
Rep by the State Public Prosecutor
High Court Building
Bangalore. ..Respondent
(By Sri P.M.Nawaz, Addl. SPP.,)
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This Criminal Appeal is filed under Section 374(2)
Cr.P.C. praying to set aside the Judgment of conviction
and sentence passed by the Presiding Officer, FTC-III,
Mysore in S.C.No.125/2006 dated 29.11.2008 convicting
the appellant/accused for the offence punishable under
Section 302 of IPC and sentencing him to undergo R.I. for
life imprisonment for the offence punishable under Section
302 IPC and shall also pay a fine of Rs.10,000/- (Rupees
Ten Thousand only) I.D. to undergo S.I. for six months
and acquit the appellant/accused.
This Appeal coming on for hearing this day, MOHAN
.M. SHANTANAGOUDAR, J., delivered the following:-
JUDGMENT
This appeal is filed by the convicted accused against the judgment and order of conviction, dated 29.11.2008, passed by the Fast Track Court-III, Mysore, in SC.No.125/2006. The appellant is convicted for the offence punishable under Section 302 of IPC.
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2. Case of the prosecution in brief is that accused-appellant herein is the husband of the deceased Jyothi; their marriage was performed about six years prior to the incident in question; two children were born out the said wedlock; on the date of the incident, i.e., on 2.5.2006, the accused took the deceased to Govardhan Lodge at Mysore and hired a room; Room No.311 was allotted to the couple by the Manager-PW.3 at about 10.30 a.m.; while mentioning his name and address in the Register maintained by the Lodge/Hotel, the accused mentioned his name as Paramesh r/o.Arakalgud, Hassan District; PW.5-room boy took the couple to the room and opened the key and handed over the key to the couple; at about 1.30 p.m. accused alone came out along with the bag and went out of the Lodge; however, he came back to the Lodge at about 3.00 p.m. empty handed and told PW.3 that character of the deceased was not good and -4- therefore he committed the murder of his wife in between 12.45 p.m. and 1.00 p.m. by strangulating her neck with the help of towel; after committing the offence, he took the key along with him and went out of the Lodge along with the Towel and bag, which were burnt by him near Kukkarahalli Tank; he also confessed before PW.3 that his name and address written by him is wrong and his name is Ramesh S/o.Kalegowda, R/o No.293, Bazaar Road, KRS, Mandya District; he requested PW.3 to take him to Police Station, wherein he once again confessed before the police and voluntary statement is recorded by the police; based on such statement, certain incriminating articles were recovered by the police during the course of investigation; the complaint came to be lodged by PW.3-Manager of Lodge/Hotel which came to be registered in Crime No.55/2006 of Lashkar Police Station, Mysore, for the offence punishable -5- under Section 302 of IPC; the accused was arrested on the spot; the police after investigation have laid the charge sheet.
3. The charge framed against the accused by the Trial Court reads thus:-
"That on 2.5.2006 at 12.45 p.m., in room No.311, at Hotel Govardhan, Sri Harsh Road, Mysore, within the jurisdiction of Lashkar Police Station, you accused with intention to cause the death of your wife, Jyothi, strangulated her neck with towel and your hands, caused her death, and thereby you have committed an offence punishable under Section 302 of IPC and within the cognizance of this Court"
4. In order to prove its case, the prosecution in all examined 20 witnesses and got marked 22 Exhibits and 19 Material Objects. On behalf of the defence, 4 -6- Exhibits were got marked. The Trial Court on evaluation of the material on record and after hearing, convicted the accused.
5. Sri A.H.Bhagawan, learned counsel for the accused-appellant fairly submits that he may not press for acquittal of the accused in this matter. However, according to him, the appellant has committed the offence punishable either under Section 304 part-II or under Section 304 Part-I of IPC. According to Sri A.H.Bhagwan, it is a case of grave and sustained provocation suffered by the accused; though the deceased had two children born out of the wedlock with the accused, she had developed the habit to go along with the third parties to the Lodges/Hotels and such immorality did not stop inspite of repeated requests by the accused as well as panchayatdars in the panchayats held for the said purpose; the accused had even went to the extent of -7- issuing notice for the purpose of divorcing her; the people in the Village started openly telling that the character of the deceased was not good and that she is amenable for anybody; inspite of repeated panchayats being held and inspite of repeated requests and warnings, the said attitude of the deceased continued and consequently, the accused sustained the grave provocation for a long period till the incident had happened. Thus according to the learned counsel for the appellant, the offence may at most fall under Section 304 Part-I of IPC.
Sri Nawaz, learned Additional SPP argued in support of the judgment of the Court below. He submits that there is nothing on record to show that the allegations made by the accused against the deceased were true. According to him, at the most such allegations may be treated as the material to -8- show the motive for commission of the offence of murder.
6. Learned advocates for both parties have taken us through the material on record including the judgment of the Court below. PW.1 is a mahazar witness of scene of panchanama at Ex.P1; PW.2- Suresh is a room boy of the Lodge wherein the couple stayed on the date of incident. He has deposed about the police coming to the hotel, opening the room and seeing the dead body, etc; PW.3 is the complainant who has lodged the complaint as per Ex.P2. He is the Manager of the Lodge/hotel. The accused confessed before PW.3 about his act and motive for commission of such act; PW.4 is an employee of the Lodge, who has turned hostile; PW.5 is another room boy of the Lodge, who has supported the case of the prosecution by deposing about the accused and deceased coming to Lodge, accused going alone out of the Lodge, again -9- the accused coming to the Lodge at 3.00 p.m., etc.; PWs.6 and 7 are the mahazar witnesses for seizure of M.O.No.1-key under Ex.P3. Both of them turned hostile; PW.8 is the Receptionist of the Lodge/Hotel, who turned hostile; PW.9 is the inquest panch, who also turned hostile; PW.10 is the villager wherein the deceased was living. He speaks about the Panchayat, as also the motive of the accused to commit murder; PW.11 is the sister of the deceased. She speaks about the motive for commission of the offence; PW.12 is the doctor who conducted the postmortem examination over the dead body of the deceased as per Ex.P13. According to him, the death is due to asphyxia as a result of strangulation; PW.13 is the Police Videographer, who has videographed the proceedings during the course of investigation; PW.14 Mangalamma is the mother of the deceased; PW.15 is the father of the deceased. PWs.14 and 15 deposed
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about the motive as well as panchayats being held for pacifying the quarrel between the accused and the deceased; PWs.16 and 17 are the panchayatdars; PWs.18 and 19 are also panchayatdars, who turned hostile; PW.20 is the Investigating Officer, who completed the investigation and laid the charge sheet.
7. PW.3 has fully supported the case of the prosecution by deposing on par with his version found in the complaint at Ex.P2. He has deposed that about 10.30 a.m. on 2.5.2006 the accused came along with the deceased and he was allotted Room No.311 of the Lodge. Accused wrote his name as Paramesh and his address as R/o.Arakalagudu, Hassan District, in the Register maintained by the Lodge. PW.3 called PW.5- Shivamurthy to take the couple to the room along with the key. Accordingly, PW.5 took the couple and opened the lock of the room. At about 12.45 p.m., the accused alone went out of the Lodge along with a
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bag. However, he returned to lodge at about 3.00 p.m. on the very day. At that point of time, PW.3 was at the Reception Counter talking with PWs.4 and 5. The accused told PW.3 that he should be taken to Police Station since he has committed the murder of his wife. Immediately thereafter an autorikshaw was brought and accused was taken to Lashkar Police Station, Mysore by PWs.3 and 4. The accused confessed before the police about the commission of offence by him and his statement is recorded by the police. Thereafter complaint came to be lodged by PW.3 as per Ex.P2. PW.3 has further deposed that key of the room of the Lodge was found with the accused and the same was seized in the Police Station itself under Ex.P3 from the accused. PW.3 identified the key. Thereafter, the police came to the Lodge and investigated into the matter. Scene of offence panchanama was conducted and further proceedings
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were held. Voluntary statement of the accused is marked at Ex.P4.
8. As aforementioned, Sri Bhagawan, learned advocate appearing for the accused-appellant fairly submits that he may not dispute the case with regard to commission of the offence by the accused. He submits that the evidence of prosecution is believable and that the accused is liable to be punished, however for a lesser offence and not for the offence punishable under Section 302 of IPC.
9. The evidence of PW.3 is fully supported by the evidence of PWs.2 and 5. They have also deposed about the accused taking the room on hire, and talking with PW.3 and thereafter taking the accused to Police Station, etc. Since there is no much dispute with regard to the incident in question and the crime
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committed by the accused, this Court does not wish to observe anything further on merits of the matter.
10. However, as aforementioned, Sri Bhagawan submits that the offence may fall under Section 304 Part-I of IPC. In that regard, the evidence of PWs.14 and 15, the parents of the deceased and the evidence of PWs.16 and 17, panchayatdars is relevant.
11. PW.14 is the mother of the deceased. She has deposed that the accused used to torture the deceased by pressurizing her to bring money from her parents' place and in that regard number of panchayats were held. Though the matter was compromised between the accused and the deceased, again the accused started torturing the deceased and consequently criminal cases were lodged against the accused. Inspite of the same, the accused did not mend his conduct. In the examination-in-chief itself,
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PW.14 also has deposed that the accused used to suspect the fidelity of the deceased; wherever she went, the accused was seeing her move with suspicion and in that context, he used to quarrel with the deceased. He had even threatened that he would be divorcing his wife.
In the cross-examination, the defence has elicited omission that for the first time she is deposing before the Court that the accused used to torture the deceased pressurizing her to bring money, etc. Further it is admitted in the cross-examination by PW.14 that the accused was complaining in the panchayat that character and conduct of the deceased are worst and that she is wandering with number of boys and boys used to come to her matrimonial house when the accused was not there in the house.
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12. PW.15, the father of the deceased also has deposed in examination-in chief itself that the accused used to see every movement of the deceased with suspicion. He further admits that the accused is none other than the son of sister of PW.15.
13. PWs.16 and 17 are panchayatdars. They are related to the accused as well as the deceased. As aforementioned, the accused and deceased are near relatives. Even PW.16 has deposed in his examination-in-chief that the accused used to complain about the behaviour of the deceased in the panchayat; to the effect that the deceased used to wander along with other boys and that she was having illicit relationship with number of people. PW.16 pacified the accused by telling that he would himself arrange for divorce in case if the deceased had illicit relationship with the third parties.
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14. PW.17 is an independent panchayatdar. He is not related to either of the parties. His evidence is on par with the evidence of PWs.14, 15 and 16 relating to suspicion of the accused in respect of bad conduct of the deceased. PW.17 in his examination- in-chief has deposed that even the panchayats were held in Police Station and in those panchayats also, the accused had complained about the conduct of the deceased. In the cross-examination, PW.17 has admitted that the accused had complained that the deceased had got bad character and that she had got illicit relationship with other boys. In that context, PW.17-panchayatdar had advised the deceased suitably by telling her that she should mend her conduct. Even the Police Officer, before whom the panchayat was held, also instructed the deceased to develop good conduct.
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15. The aforementioned material on record, in our considered opinion, would amply go to show that the accused was suspecting the fidelity of the deceased since more than 3 to 4 years. Repeated panchayats were held. Even panchayats were held in the Police Station. Deceased as well as accused were advised properly by panchayatdars. According to the accused, inspite of the same, the conduct of the deceased did not improve. Thus, the grave provocation generated in the mind of the accused continued from time to time for a long period of 3 to 4 years. Having regard to the material on record, the learned advocate appearing for the accused-appellant is justified in arguing that this is a case of grave and sustained provocation. As aforementioned, according to the accused, the provocation continued on day to day basis as the illegal conduct of the deceased was not rectified and therefore grave provocation which
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developed in the mind of the accused sustained for long time till the incident had occurred. Being frustrated, it seems, the accused took the deceased to the Lodge and she was done to death.
16. The facts and circumstances of the case, in our view would clearly reveal that the offence is committed by the accused is culpable homicide not amounting to murder, which falls under Section 304 Part-I of IPC. The homicide is committed with the intention to do away with the life of the deceased. Since the incident has occurred with grave and sustained provocation, the offence may fall under Section 304 Part-I IPC and not under Section 302 of IPC.
17. We heard Sri Bhagawan, learned counsel for the appellant on the question of sentence. According to him, the accused may be sentenced to undergo
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imprisonment for seven years under the facts and circumstances.
The same is opposed by the learned Additional SPP.
18. Since the offence is committed with an intention and as the accused has taken the deceased to a Lodge and thereafter committed the murder and since it is not a case of sudden act, in our considered opinion, the accused shall be sentenced to undergo ten years. Hence, the following order is made:-
a) The judgment and order of conviction dated 29.11.2008, passed by the Fast Track Court-III for the offence punishable under Section 302 stands set aside.
b) The accused-appellant herein is convicted for the offence punishable under Section 304 Part-I of IPC.
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c) The accused-appellant herein is
sentenced to undergo imprisonment
of ten years and to pay a fine of
Rs.15,000/- (Rupees fifteen
thousand only), in default, the
accused-appellant herein shall
undergo imprisonment for one year.
d) The period of sentence already
undergone by the accused shall be
set off.
Appeal is partly allowed.
Sd/-
JUDGE
Sd/-
JUDGE
*ck/nk-