Karnataka High Court
Sri Nagaraja Naika vs State Of Karnataka on 9 January, 2024
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CRL.A No.1691/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1691/2017(C)
BETWEEN:
SRI NAGARAJA NAIKA
SON OF KRISHNA NAIKA @ LULYA NAIKA
AGED ABOUT 45 YEARS
CHIKKA TEKALAVATTY MAJURE
KEREMUNDALAHATTY VILLAGE
HOSADURGA TALUK. ...APPELLANT
(BY SRI SOMASHEKHARA HARVI, AMICUS CURIAE)
AND:
STATE OF KARNATAKA
BY SRIRAMPURA POLICE STATION
CHITRADURGA DISTRICT
REPRESENTED BY STATE PUBLIC PROSECUTOR
Digitally signed HIGH COURT OF KARNATAKA
by PRABHU BENGALURU - 560 001. ...RESPONDENT
KUMARA NAIKA
Location: High (BY SRI VIJAYAKUMAR MAJAGE, S.P.P.II)
Court of
Karnataka
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 24.06.2017 AND SENTENCE DATED 28.06.2017 PASSED BY
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, IN
S.C. NO.50/2014, CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF THE IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS
DAY, K. S. MUDAGAL J., DELIVERED THE FOLLOWING:
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CRL.A No.1691/2017
JUDGMENT
Challenging the order of his conviction and sentence, the accused in Sessions Case No.50/2014 on the file of the Principal District and Sessions Judge, Chitradurga, has preferred this appeal.
2. The appellant was prosecuted in Sessions Case No.50/2014 before the trial Court on the basis of the charge- sheet filed by Srirampura Police in Crime No.26/2014 of their Police Station for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, 'IPC'). Crime No.26/2014 was registered as per Ex.P17, against the appellant on the basis of the complaint as per Ex.P1 filed by PW1- Kumara. For the sake of convenience, the parties are referred to henceforth as per their ranks before the trial Court.
3. Case of the prosecution in brief is as follows:
PWs.1, 4 and 5 are the brother, sister and daughter respectively of the deceased-Kenchamma. Kenchamma was married to Ningappa. Out of the said wedlock, they have a son and a daughter. Ningappa died an accidental death about 10- 12 years prior to February-2014. After his death, Kenchamma -3- NC: 2024:KHC:980-DB CRL.A No.1691/2017 lived 2-3 years at Sujikallu Village, Hosadurga Taluk, and then shifted to her parental house in Doddaiahana Palya, along with her children. About 5-6 years prior to the offence in the case, the accused and Kenchamma developed relationship.
Thereafter, leaving the children in her sister's house, Kenchamma started to reside in the house of the accused at Keremundalahatty Village. The accused suspecting the fidelity of Kenchamma used to come home drunk and assault her everyday. Due to that, Kenchamma went back to her parental house and stayed there. The accused went there, assaulted her and forcibly took her back to his house. On 10-02-2014 in the afternoon, in a drunken state, he chased Kenchamma and assaulted her without allowing the villagers to come to her rescue. During intervening night of 11/12.02.2014, the accused committed murder of Kenchamma by assaulting her with MO.1- arecanut spatula and escaped from the house.
4. On receiving the information, PW1 filed complaint as per Ex.P1 before PW15 the then Police Sub-Inspector of Srirampura Police Station, Chitradurga. Based on that, he registered an F.I.R. as per Ex.P17 in Crime No.26 of 2014 -4- NC: 2024:KHC:980-DB CRL.A No.1691/2017 against the accused. On conducting the investigation, PW.18 CPI filed the charge-sheet.
5. The trial Court on hearing the accused, framed the charge against him for the offence punishable under Section 302 of the IPC. The accused denied the charge and claimed to be tried. In support of the case of the prosecution, PW1 to PW18 were examined, Exs.P1 to P19 and MOs.1 and 2 were marked. After his examination under Section 313 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), the accused neither filed defence statement nor led defence evidence. However, Ex.D1 was marked by way of confrontation.
6. The trial Court on hearing the parties, by the impugned judgment and order held that charge brought against the accused was proved beyond reasonable doubt by the evidence adduced by the prosecution. Therefore, the trial Court by the impugned judgment and order convicted the accused for the offence punishable under Section 302 of the IPC and sentenced him to imprisonment for life, i.e. till his death and fine of Rs.10,000/-. In default to pay the fine amount, the accused was directed to undergo simple imprisonment for a -5- NC: 2024:KHC:980-DB CRL.A No.1691/2017 period of three months. The accused has challenged the said judgment and order in the above appeal.
Submission of Sri Somashekhara Harvi, learned Amicus Curiae for the appellant-accused:
7. There are no eyewitnesses to the incident. The case was based on circumstantial evidence. The prosecution was required to prove all the circumstances set up by it, leading to the hypothesis of the guilt of the accused. The cause of the death was inconclusive. Material witnesses in the case were relatives of the deceased, so they are interested witnesses. The charge was not proved beyond reasonable doubt. Hence, the impugned order of conviction and sentence is unsustainable. The trial Court committed error in expanding life imprisonment till the death of the accused. Therefore, the impugned judgment is liable to be set aside.
Submission of Sri Vijayakumar Majage, learned State Public Prosecutor-II for the respondent-State:
8. Merely because PWs.1, 4 and 5 are the relatives of the victim, they cannot be branded as interested witnesses. Their evidence shows that the victim got into a relationship with the accused. PWs.6 to 8 are the independent witnesses. Nothing was elicited in their cross-examination to show that -6- NC: 2024:KHC:980-DB CRL.A No.1691/2017 they are interested witnesses. The fact that the accused and the deceased were in a live-in relationship and residing in the house of the accused was established. The fact that the death was homicidal was proved by the evidence of PW14. The accused failed to explain the same as required under Section 106 of the Indian Evidence Act, 1872 (for short, 'Evidence Act'). The trial Court considering all the facts and circumstances of the case held that the circumstances set up by the prosecution are proved beyond reasonable doubt. The impugned judgment and order of conviction and sentence does not warrant any interference.
9. On considering the submissions of both side and material on record, the questions that arise for the Court's consideration are:
i) Whether the impugned judgment and order of conviction is sustainable?
ii) Whether the impugned order of sentence is sustainable ?
Analysis Reg. Point No.1:
10. The relationship between PWs.1,4,5 and the deceased was not disputed. It was also not disputed that the victim -7- NC: 2024:KHC:980-DB CRL.A No.1691/2017 Kenchamma was married to one Ningappa of Sujikallu village about 20 years prior to the incident and he died about 10-12 years prior to the incident by drowning. It was also not disputed that after the death of Ningappa, the victim lived with her children in Sujikalllu village for about 2-3 years and thereafter she had shifted to her parental house in Doddaiahna Palya along with her children and she was vending flowers in the said village.
11. There were no eyewitnesses to the incident. The case of the prosecution is based on the circumstantial evidence. The prosecution to bring home the guilt of the accused relied on the following circumstances:
(i) That the accused and the deceased were in live-in relationship and they were living together in the house of the accused in Keremundalahatty within the limits of Srirampura Police Station;
(ii) Motive: That the accused suspecting the fidelity of Kenchamma subjected her to physical cruelty and soon before her death, he was found assaulting her;
(iii) Kenchamma died homicidal death in the house of the accused;-8-
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(iv) Conduct of the accused: Accused absconding from the scene of offence soon after the incident and his failure to explain the unnatural death as required under Section 106 of the Indian Evidence Act.
Reg. Motive and relationship of the accused and the deceased:
12. PW.1 the brother, PW.4 the sister and PW.5 the daughter of the deceased categorically deposed about the deceased being a widow having children and she developing a relationship with the accused, shifting to Keremundalahatty and living with the accused in his house in the said village. They also deposed about the victim leaving the children in her parental house. Similarly, PWs.6 to 8 the residents of Keremundalahatty village and neighbors of the deceased and the accused, categorically deposed that accused and the deceased were living in their village in the house of the accused as husband and wife.
13. In the cross-examination of the aforesaid witnesses, the accused and the deceased cohabiting with each other in the house of the accused was not disputed. To prove that the death had taken place in the house of the accused, the prosecution relied on the evidence of PW.9 PDO of Doddathekalavatti village -9- NC: 2024:KHC:980-DB CRL.A No.1691/2017 and Ex.P5 the House List register extract. PW.9 deposed that Keremundalahatty comes within Doddathekalavatti Grampanchayat limits and on the requisition of the Investigating Officer he issued Ex.P5 the House List register relating to the said house.
14. Ex.P5 the House List register shows that the scene of offence was bearing Door No.305. In the said document, the accused was shown as khathedar and the possessor of the said property. PW.9 was not cross-examined to dispute the correctness of Ex.P5. By such evidence of PWs.1 and 4 to 9, the prosecution case that the accused developed relationship with the deceased about 5 to 6 years prior to the incident and lived with her in his house in Keremundalahatty village was proved beyond reasonable doubt.
15. Then the next question is whether the prosecution proved the motive for the offence, namely accused harassing the victim suspecting her fidelity. Even on that aspect in the complaint Ex.P1 and in the evidence of PWs.1,4 and 5, it is categorically stated that the accused suspecting fidelity of the victim used to pick up quarrel with her and assault her. PW.1 also stated that being fed up by that, about 15 days prior to
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NC: 2024:KHC:980-DB CRL.A No.1691/2017 her death the victim came to his house and stayed in his house, accused also came there, picked up quarrel with her, assaulted her and took her back to his house. PWs.1, 4 and 5 also deposed that they had advised the accused several times to mend his ways, but he had not changed. They also deposed that two days after the accused taking the victim to his house, they received the information about accused committing her murder and they went to his house to find the victim dead with homicidal injuries.
16. PWs.6 to 8 the residents of Keremundalahatty village deposed that about two days prior to her death, the accused assaulted the victim by chasing her in their village and when they tried to intervene, the accused dragged her into his house. PW.7 deposed that when she tried to intervene, the accused told them that the victim is his wife and they cannot question he beating her and he even prevented them from giving water to the victim. PW.8 also speaks about he witnessing the accused, harassing the victim and they advising the accused to mend his ways. He also states that he witnessed the incident between the accused and the victim. After that incident, the accused was not found in the village and he
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NC: 2024:KHC:980-DB CRL.A No.1691/2017 informed the police about the death. Absolutely nothing is elicited in the cross-examination of PWs.6 to 9 to demonstrate that they had any animosity or ill-will against the accused to falsely implicate him or that his implication in the case enures any benefit to them. Therefore, they cannot be called as interested witnesses. Similarly, merely because they were related to the deceased, PWs.1,4 and 5 cannot be labeled as the interested witnesses, unless it is shown that the implication of the accused in the case enures any benefit to them. The accused also did not dispute that after the death of the victim he was not found in the village. By the aforesaid evidence the prosecution proved the relationship between the deceased and the accused, the motive circumstance and place of offence. Reg. Nature of death and Section 106 of Evidence Act:
17. To prove that the death was a homicidal one, the prosecution relied on the evidence of PW.14 who conducted the postmortem examination on the dead body, Ex.P15 the P.M report and Ex.P16 the opinion regarding cause of the death.
18. Exs.P15 and 16 and the evidence of PW.14 show that the victim had suffered following external injuries:
(i) Abrasion on right side of chin measuring 3 cm.
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(ii) Abrasion on right shoulder measuring 5 cm.
(iii) Abrasion on right breast measuring 6 cm each 2 in number.
(iv) Abrasion on inner aspect of left thigh region measuring 5 x 2 cm.
(v) Abrasion on inner aspect of right thigh region measuring 3 cm.
(vi) Abrasion on right knee part measuring 4 x 2 cm.
(vii) Abrasion on left knee part measuring 2 cm. Thus in all there were seven external injures on the dead body.
19. PW.14 further states that the victim had bite mark on the right eye and she had suffered fracture of frontal bone and brain was damaged etc. She states that all the aforesaid injuries were antemortal in nature and they could be caused if the victim was assaulted by club. She also deposed that she examined M.O.1 submitted by the Investigating Officer and issued her opinion as per Ex.P16 stating that the injuries mentioned in Ex.P15 could be caused by MO.1. As per Ex.P16 the opinion as to the cause of death, it is concluded that the death is due to injury to vital organ, the brain the frontal lobe and fracture of frontal bone and such fracture could be caused by M.O.1.
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20. In the cross-examination of PW.14 it was suggested that such injuries could be caused if the person fell on sharp edged stone. Such theory of accidental injuries was not suggested to any other witnesses. The accused himself in the examination under Section 313 Cr.PC did not put forth the theory of accidental injuries. Except the accused and deceased, there was none else at the scene of offence during the incident. If the victim really had suffered accidental injuries, the accused should have first attended to her or informed others about such accidental injuries which he did not do. The way he absconded from the place becomes relevant under Section 8 illustration
(h) of Evidence Act and demonstrates that he had role in inflicting the injuries and the death.
21. Learned Counsel for the appellant/accused relying on the confessional statement of the accused under Section 25 of the Evidence Act argued that, as per the said statement both accused and the deceased were drunk and he hit her in a rage of quarrel between them. Therefore, it cannot be said that he had any intention to commit her murder. He contends that even assuming that the accused was author of the injuries, motive or knowledge of committing murder is not attracted and
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NC: 2024:KHC:980-DB CRL.A No.1691/2017 the offence falls under Section 304 part II of IPC. First of all, he has not taken up such defence during trial. Though the confessional statement formed part of the charge sheet, only the admissible portion leading to discovery of incriminating evidence was marked at Ex.P19.
22. During the course of cross-examination of Investigating Officer PW.18 also it was not suggested that the accused and the victim were drunk, had a free fight and accused also suffered injuries in such fight. Without any such defence in the cross-examination of the witnesses or under Section 313 Cr.PC, for the first time it was argued before this Court that the case falls under Section 85 of IPC. Even to invoke Section 85 IPC, all the ingredients of the said section shall be satisfied. Section 85 of IPC reads as follows:
85. Act of a person incapable of judgement by reason of intoxication caused against his will:
Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.
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NC: 2024:KHC:980-DB CRL.A No.1691/2017 The reading of the above provision shows that the defence is available only if such intoxication or administration of intoxicating substance is by some other person or without the knowledge or against the will of the accused. Secondly, the intoxication must be of such a magnitude that the accused must be incapable of knowing the nature of his act. It is not the case of the accused that somebody administered him alcohol. Thirdly, on assaulting the victim, he ran away from the place. Therefore, it cannot be said that the accused was incapable of knowing the nature of his act due to the intoxication. Therefore, the said defence or the judgment of the Hon'ble Supreme Court relied on by the appellant's Counsel in Yogendra Singh @ Jogendra Singh Vs State Of Rajasthan1 does not advance the case of the accused.
23. Apart from that, the evidence of PWs.1 and 4 to 8 show that it was not a case of a single assault in provocation due to intoxication. The evidence shows that all along the accused was mercilessly assaulting the victim claiming that he can even kill her as she is his wife. On that count also the 1 AIR ONLINE 2018 RAJ 647
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NC: 2024:KHC:980-DB CRL.A No.1691/2017 contention that there was no motive for the murder or there was no motive in assaulting the victim deserves no acceptance.
24. Once the prosecution establishes that the death has taken place in the house of the accused where himself and the deceased were living together, the same was unnatural/homicidal one, Section 106 of the Evidence Act requires him to explain the cause of death. The Hon'ble Supreme Court in Trimukh Maroti Kirkan Vs State of Maharasthra2 has held that if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence, it would be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, is insisted upon by the Courts. It was further held that in such case the burden would be of a comparatively lighter character, in view of Section 106 of the Evidence Act and there will be a corresponding burden on the accused to give a cogent explanation as to how the crime was committed in the house. It was held that the inmate of the house cannot get away by simply keeping quiet and 2 (2006) 10 SCC 681
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NC: 2024:KHC:980-DB CRL.A No.1691/2017 offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer any explanation. It was further held that the accused has the duty to offer explanation as to how the death took place and how the victim suffered injuries.
25. First of all the evidence on record shows that the prosecution has discharged its burden of proving the circumstances set up by it beyond reasonable doubt. Secondly, the accused failed to offer required explanation under Section 106 of the Evidence Act in his examination under Section 313 Cr.PC or by way of defence evidence. The trial Court on sound appreciation of the evidence on record rightly arrived at the conclusion that the appellant/accused is guilty of the charge under Section 302 of IPC. The same does not warrant interference of this Court.
Reg. Point No.2:
26. The trial Court by the impugned order has sentenced the accused to imprisonment for life i.e., till his death. Section 53 of IPC which deals with the punishment, speaks of only imprisonment for life.
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27. The reading of Section 302 of IPC coupled with Section 28 Cr.PC shows that the Sessions judge is authorized to impose the sentence of imprisonment for life or death sentence and death sentence shall be subject to the confirmation by the High Court.
28. Interpreting the above provisions in the context of Sections 432 and 433 of Cr.PC, the Hon'ble Supreme Court in Ravinder Singh Vs State of Govt. Of NCT of Delhi3 held that only High Court or Supreme Court have the power to take recourse to special category of sentencing other than the one prescribed under Section 302 IPC. The Hon'ble Supreme Court held that the Sessions Judge has no power to impose sentence of life extending the same until death or twenty years etc., therefore the appeal succeeds only to that extent. Hence, the following:
ORDER The appeal is partly allowed.
The impugned judgment and order of conviction for the charge for the offence punishable under Section 302 of IPC is confirmed.
3 AIR 2023 SCC 2220
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NC: 2024:KHC:980-DB CRL.A No.1691/2017 The impugned order of sentence is modified as follows:
For the offence under Section 302 of IPC the appellant/accused is sentenced to imprisonment for life and fine of Rs.10,000/-. In default to pay fine, he shall undergo simple imprisonment for three months.
The order of trial Court with regard to disposal of the property and set off under Section 428 of Cr.PC are maintained.
The Court places on record its appreciation for the able assistance rendered by Sri Somashekhara Harvi, learned Amicus-Curiae. Registry shall pay the admissible remuneration to him.
Sd/-
JUDGE Sd/-
JUDGE KVK/PKN List No.: 1 Sl No.: 6