Karnataka High Court
B V Surendra @ Suresh S/O Late Vishwanath ... vs State Of Karnataka By Madikeri Town Ps on 24 July, 2009
Bench: K.Sreedhar Rao, C.R.Kumaraswamy
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 24" DAY or JULY 2009 PRESENT THE Hoixrete MR. 3USTICE K..SREEDH.AR,.A4F§AC3A-Q A AND THE HONBLE MR. JUSTICE C.R.E_KU:_~,AjRAASWA'M'YV:a,.__H'*r:;J CRIMINAL APPEAL.i\iQ.46A2/J2}%_§ 00 BETWEEN: _ _ _ B.V. Surendra @ Suresh A S/o Late VishwaVn*~at'h- ii3,Aai,V" V Con . N0. 141:13';'i'CeAtraI":P'rsso~n.;r Mysore. K APPELLANT (By Sri Somash'--e_i<ar_ Curiae) Ai_\.!.DA: State ' iia ma by Madikeri.;Town«r.Po!it;-e.v~'Station. RESPONDENT
Asprtiiiieyg Sri Pym. remiss, Addl. SPP) _Thi,S__ Criminal Appeal is preferred by the '.a'p.pe!iant/Convict/accused through Superintendent, Central '[_'--,Prison',._ Mysore, against the Judgment dated 15.6.2005 'passed? by the Sessions Judge, Kodagu-Madikeri in S.C. '"j..__No..,7/2002 convicting the appelIant/cohvict/accused for the ijoffeince punishable under section 302 IPC and sentencing $3,, _ him to undergo imprisonment for life and to pay fine of Rs.5,000/--, in default to undergo R.I. for six months. This Criminal Appeal coming up for hearing thisfjday, C.R. KUMARASWAMY 3., delivered the following. 3UDGMENT This Criminal Appeai is :":.gpre:fe'rreld._by:V appeliant/convict/accused throu'g--hg4"~S_upe'rin__tende:nt;;EentraI " ' Prison, Mysore, against the Jud*gr.n:en't-»i..date'drv--i.15l:6.2005 passed by the Sessions in S.C. No.7/2002 convict:i..ngi;t_he ailppefiant/co_nyi_ct]'accused for the offence puniishable of IPC and sentencing him to ande:'go"~«.,impr:iVs_onrrfe».ni't for life and to pay fine of default'"to"undergo Rigorous Imprisonment for six V
--V (2) "'Th.e'cVase of the prosecution in brief is as under:
'=.:'4"u..jf2ni1*-...ThVat on 23.112001 at about 11.30 a.m. when "tfimti; Sathyaprema w/o complainant was alone in her Vifgfhoijse, accused gain entry into her house and when she fig, protested, he kiiied her by means of knife and when',hVe.4:was proceeding from the house aiongwith the knife, 12 and CW-13 caught hoid of him.
2.2 Compiainant is the huVsb_and4of_:the has stated in his compiaint thatiivstince_fron*..V. he was residing in the He was working as an ,officer....i.n'_the.'Vggftgodfaéigfiiramina bank. That on went to bank.
When he wayVs'__i_nV' a.m. he received a teiephoneikcaii ,G'oy':i"i1.d'amaiah. He informed him that by somebody and the Cvuiprvit ""~vVf,hgereafter he went to the house and saw.__h'e,r'wi,fe..,_;yiing.A::de_ad, There was a bleeding injury found herfneck clothes were aiso biood stained. It is ..i_]a.i,_s4o'._,stated~~ the compiaint that one person by name '.'5'u.rei:"hw.(:a"c'cused) trespassed into his house to commit theft . her wife protested, accused killed her. K.M. VU,Sure'sh, B.U.Ganapathy and BK. Ganapathy has seen the E/,.
incident. It is also stated in the complaint that he has also seen the blood stained knife used for commission o-f.__the offence. Complainant presented the complaint. 'registered the case in Crime No.154/201 for punishable under section--302 of IPC.::':
(3) The teamed Sessioil'ilSu:pL'««.Judge "the " if evidence of the prosecution wit~ne'sse*s_ hascome to a conclusion that the accused" "is.7*gui_ltyf_»..o'f-.__ the offence punishable under:..seccti.on-flog?'_:j,of-«,AI'P'C3.xvaneiif convicted the accused forithe. under section-302 IPC. (4) :.,n'_ggrie\}ed'~l5y same, the appellant has p':;gfer'red'i"tVhisfappeal. iiiii heard the learned counsel for the 'r-«iafppel-slant as..i_5,5'eli asthe learned counsel for the respondent V the records.
€/,/ (6) Learned counsel for the appellant submits as unden The seizure of the knife M0,: has established by the prosecution. CW~l5 Govinda'ma.i:aTh",i'lllthe material witness has not been:'°'eX'am'i.ne.d_lV:"b}:Vv"'t'he"'. prosecution. There is no robbery coimmitted the"
of the deceased. The accused viia».s:."v~Jorking_ ihr--.theIgaVrage. The presence of the accus'e.d has not been established. In thecross:e>§a.mhilnatiomhl"it..'iiis7'elicited from the c0--work.e'rsl't'ha{t._th§{V vrasvlworking in the garage at the relevar.«tV'ti--mVe;
(7)v_»»'L-ieariievd /$d'dli..__tSHtate Public Prosecutor submits as und--er:,."
_ PWs;9, :14-,v 919, 22, 24 and 27 have seen the accused out ofsthe house of the deceased armed with blood 'knife and his clothes were also blood stained and Thu"».._¢Athese"irvitnesses have chased him and caught hold of him 2/ red handed. Seizure of knife has supported the case of the prosecution. The FSL report indicate blood stains on.___the MO.1 ~-- knife.
(8) For the purpose of testing the sotsiruiness"of';tiiei if decision of the trial Court, we have evidence of the prosecution".w'itness'es and "«a'i's~o. 'the materiais placed on record, (9) The prosecution witnesses and got Mos.1 to 15. On behaif of thex'defence:,V were marked. (1()..}.iP'V\vi'V'~1 is V'th'*e.Vc_o_rfnpiainant. He was working as an offi'cVe'i';i'ri*' He has stated in his evidence that on in "th_e1'VVmorning at about 10 am. he ieft his and wentvto office. His wife Sathyaprerna was alone rented house and his son Abhiiash had gone to h At about 11.45 am. when he was in the office, 'i*.g'th.e.."Bank Manager received the telephone cali and handed 2/ over the receiver to him. The said telephone call was received from one Govindamayya who was residing....i__n a house situated at the right of Kodagu District":V:'iEl.o'u:se Building Co-operative Society. In the said the said Govindamayya told him that Mth"e're_ is inside his house and that awperson'-..assa.u_lte'd' Sathyaprema by means of a and have caught hold of him. Then to_v.t:h'e'housAeVAat about 11.50 a.m. He pushed i<;fo'o'r.'Voi3_--h"is house and after that the dead body of his wife in the pool of blood on the grounds ovoid'v'*orniaVrriients which were worn by his herflbody. After entering his house, the threeio«ffic'ia:i's~..._n_o¢fjV-iiodagu District House Buiiding Co-
";.x'operative"'----SocietyAviz. Suresh, B.U. Ganapathy and BA. told him that they have actually seen the out of his house after assaulting and ilk'»v._VAco'rnVrni'tting the murder of his wife Sathyaprema and that f/' whiie accused rtanning out, the said three persons caught hoid of the said accused. The accused at that holding choori or katti. When the Poiice "
spot, he presented a written com;:>iaint"'to*thA_e*"..APSI".H:vPi is':
the written compiaint. Accused mechanir:
garage which was situated at 'air.:'distanc'a_V_of:".=ai5'outV one ftarlong from his house.V':1"=,Pre'\}i'ousi.yjfhe hadwgiven his motorbike to the accused for_2t' o_r._repair. So he knew the accused: ea;riiier::tgo{tiie 4_i'n_ci'd'e'nt~." Poiice seized blood stainedd"'rr'iu:df;._v hitawai ch"a'p'paI, one green plastic mat which The Poiice inspected the spot and gdratéwnv maha';zar'.: The dead body was shifted tCV>"V_.t'i':eVVijistriictvi'i,i-Iospitaili for postmortem examination. Thouighwthigs cross--examined at iength, nothing iS e_iiciteci=.in his -testimony.
The material witnesses in this case are PWs--9, atom' 24. W (12) PW--9 was working as Excise Sub-Inspectorhrie states in his evidence that adjoining to buiiding, there is a premises caiied "NJaygesh "
in the said 'Nagesh Compound' th'er"e:'_"ar'e 'twotihréiej residentiai houses. That on * it Excise office in the mornmfil a.'m.t ...vf§At that reievant time, his Excise was aiso there in the office:,...[;; vjktodagu District House Building! would open in the morning at:7'ti'O"a;hn.g at the reievaht time was working;-«a's«-- the said Society. One Suresh atgthe reilieviaiit.»'tim-eiwiias working as the Engineer in inieie was another person by name Gana'pat.hyy; working as the cierk at the relevant iitime in the s.a"i'c:i-.s"ociety.
has further stated in his evidence that on t while he was carrying on his official duty in the :'tTS'tai~te Excise office, at about 11.30 am. he heard the Q 10 bowting sound from the side of buiiding of Kodagu House Buiiciing Co~operatEve Society. thereafter, he and his guard Sommannacam'e"0u:t-of-officevié thinking that some unhappy incidentv'was\"g..§jin'g._'on:;' time, he observed that the ac<§u_Vse.d wasrunriviVn§._;'ith.ro'ugh * L' the main road situated in front of-the-i.r"'house';'wheiéeas the three officiais of KDHB Co';o%;§.eratE§e' Sj:'orcive.:fV«.were chasing the accused. The__na;:mes Qtt;h'cf3:i:sa:idw:'ti't:h_reefotficiais of KDHB _Co-operative Sc:-'ciet'y. :were"~s_o:_,ch:as«ing the accused are (1) Secretary and (3) Ganapathy, Excise Guard Somanna aiso chased trom behind the above three Asiomrunning and chasing, the Engineer Sures-hr of about 50 yards from the State iV';r'§Xc_ise orhceicaiight hold of the accused. "Then an of them .h_oid""of the accused and brought him inside the "'V7_'-.V_i§ia'.§;'es"h'Compound. At that time the accused was wearing and shirt and his pant and shirt were stained with E/' 11 blood. They further found that accused had got inseyrteldin his waist at front side of the pant, one knife knife was also stained with blood. They furth»er1:~o:b's:erver;l"
C in the Nagesh compound that the front ds.;;o.r:'ofth-e:"ho'u:sieA by complainant -- PW--1 was opened'lVh'al.f way and th:roiuvg.h,,siuch space, they observed that_ wor'n,a.n'fl3_ody in the pool of blood and the blood was profusely oozing Secretary Ganapathy went that he would bring the of the woman to hospital. the complainant ----
PW1, whois the said lady came to the hfiuse. A "fhlereaffter the Police arrived at the spot. Then far-rviilved at the spot. By that time, the said had'---.brea't'h,e.?;lAher last breath or died. After arrival of the:Engineer Suresh handed over the accused to Thus under the above circumstances, they know that the accused killed the said lady {ax//' 12 Sathyaprema, the wife of PW-1. He identified the knife iVio.1 which was with the accused.
(14) Severai suggestions were put:
Suggestions were aii denied by this witness.__...Th:i»s'ieii:tness"
was cross-examined at iength, but7_1not.heiAnvgu'--euis4._ei~ic'i'ted'__Hto .' disbeiieve his evidence.
(15) PW-14 is another' m%.ait"eriei.i§{vst«nessi.i"' "He has stated in his evidence that on ~a.1ea.bout 11.30 or 11.45 a.m. of KDHB Society, he heard the the southern side of their office buiidivng. After h'ea'r'ii'ng the screaming sound, he ai-i'ong--wit'h--.iiotirieroffice'staff saw from the window the place fronie._v\}Vh_ere scereiaming sound was coming. They saw one maie44_perv-son.i'~i'coming out from the house of Chiko bank ' hioiding knife in his right hand. They felt that the it"5,"_4._sa4i_'d.__'rnVa'i*e«i"Aperson had committed some unhappy incident hence he and Accountant Ganapathy chased and C/' 13 caught hoid of him. By that time, an official of thegSt,ate Excise Department came to the piace. At found that there were stains of blood on the.,'sji'i.irt:iA.i.of.._the said male person.
(16) PW~19 has stated in'.gj{:is..t,evi.deinceoA:t.hé'tTo'ntithe if date of incident at about Ii;"1..,_3O sound from outside. Then he and their office and found that acc~u'seci"wa:s bus stand and some persons Then he and PW-
9 also chased s'aiid'-.i.p_e-rsons to caught hoid of the accused. Theriiaii and caught hoid ofthe accuisved who Then they observed that thiereiiivere biood on the shirt and pant of the _avccLise'd..' V i5\Ai¥22 is another materiaf witness. He has 'fi:sta_ted'i._i'n* his evidence on the same lines as that of other V n"iate'riai witnesses.
14 (18) PW--24 has stated in his evidence that he know the accused. On 23.11.2001 at about 11.30 am, hirnself, Excise Officer and Excise staff came to the spot hold of the accused who was running. At that "
of blood were found on the face and d-re's'sesA_ of (19) PW--2 is the neighbourV_of_VtheV"d.ecease'd'}A~g_'~P.w--.S the Assistant Engineer in PWD wh_oVV'jA'preip_are.d "the siefietch of scene of offence as per Ex."P3h-S" photographer.
PW--5 is the owner.o'f.__the_"hou:se_:vv:'he_re- co'mplain,ant was residing. P;W--_t_§.is'l'lt--'i1e.._:SHpOfof..._i$ri--adikeri Town Police Station who registeredrtheVcrim"e:"in'::'C.rime No.154/2001. PW--7 is th_e_HC went to spot and received complaint from thAe._pcornplai,na.n"t..:A"and brought the same to the Police :7fl__Statio'.n~.p'ishuthe Police Constable. PW--10 is the Trdoctor who ..condVucted the PM examination. She has stated 'in;__h~etx_ev'i~derice that death was due to grievous injury, V' and complete loss of blood from the body. She has 'tE'is.s_uLed PM report as per Ex.P12. She has also stated that Q,/* 15 injuries mentioned in the PM report could be caus~e'd.e by choori or knife like M01 if a person is assauite.d~«."b3i:'__'t'h'a_t'.~. PW-11 is the elder sister of the deceased. the Assistant Director of FSL and he has Ex.P14. PW-13 is the mahazar w.itness_ 'whVo VVal.';30.ut the seizure of MO.1. PW--1S is t:h'e.t:ow'»ner.'of:_the house of the deceased. PW-16 is tVhee."1iinqL.iesi;i£;.i3'anCli'iwitness. PW-17 is the police official _wh.o car'r'iedil;th'e.i.i"?IRxizoitliie Court. PW- 18 is the police __.r)--.'fj'i*v.r:4_iaAAl:l_dw_h'c';t_c;;1:_rr.ied."the articles to FSL. PW- 2O is the Irivesticiat'iVng_f3'C)ffic'_eri__ Pi/.V--21 is the attendar in the Gramina l inquest panch. PW-25 is the staff'?4§;f3A'f" the bEi'i'ilV§V.i V:PWs.29, 31 and 32 are the cot v\ic:rl<ers«..lof _th.e«.a'cc_used. PWs--33 and 34 are mahazar witnesse's..tovv'tl;ie%:.se:=i23ure of clothes of the deceased. I have carefully examined the evidence of ".'jth_etpro:secution witnesses. The evidence of PWs.9, 1-4, 19, Kl';"A2.24_"':.'and 24 reveals that accused was running from the af 16 house of the deceased and at that time, these wi~tn'ess's.es have chased him and caught hoid of him blood stained knife. There is a positive effect that accused was caught red h'aVnci.ed'fVa|'on_§ju.i,ith stained knife. It is the contenti:o'n._%>of the.ie.aiif;:e'dWcou'nseiif for the appellant that not been established. The objectffiffofff'Vhav~i'n:c} is to provide the of the evidence of a poiice. the contents thereof are in the of evidence but not substantive direct evidence that when the accused. vvasu"'r'cinV'r1ingA.'Fro.m the house of the deceased, handed aiongwith biood stained knife.
Ex.Pit'-4"+~.i'__i54or-einsivicwA'.iSc"ience Laboratory report discloses that 7,:Ai'.te'rn Nofi. ch'o'o'rii'; item No.11 one shirt, item No.12 one i\Vfo..7 nighty and item No.10 one ianga were sra'in'éd. Q/I 17 (21) The accused was examined under Sectiorg"i3:'i.3:"iQ'f Cr.P.C on 29.03.2005, but he has denied---- incriminating circumstances appea*rin.g --'_4ag_Va"i'n5s'fE Subsequentiy, the written statement':'of:i-the ac'c_used. 04.04.2005, which was not signedfieither b.y.'thVé'_:accuse'd or by the counsel is found Inilthgatvé written statement, the accused ahis:.:VVi"'n\g_~0_l\2'ement in the offence. Since, this'statem"ent7vvas:V:Tunsigned, it may not come to From the evidence of material materiai placed on record, it is clear thatElie'Torosecution has estabiished its case that " assaulted the deceased and rntivrder of Sathyaprema. The trial Court afterl"'e>A{a--miri'in'g._t'h.e'V..evidence since there was no theft of Vflanyw jewels. "oVr'i4'articles in the house of the deceased, c.'vaVcq§uittVe'd"«,the accused for the offence punishable under A"4".'jse_t:'t*iorig39'f3 of IPC. The trial Court on careful analysis and fl"iiaueolpiraisement of the evidence has come to the conclusion E Q';
18 that the accused is guiity of the offence punishablevxonider section 302 of IPC. The finding recorded by _ is sound and proper. We find that there is 'n'o'v*é--nffirrnity.V the order passed by the triai Court.
(21) In View of the aboveiivudiscossion,idwhe the following:
This Criminai3-./:,A|:§§e_a§.,Vi:s VV:'""i"'he fee of amicus curiae is fixedat"F2.s';*5}.Q_Qc/5; " V Sd/..
JUDGE Sol/~--» JUDGE