Karnataka High Court
Basavareddy S/O Yallareddy Madinoor vs The State Of Karnataka on 20 March, 2013
Author: H S Kempanna
Bench: H S Kempanna
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IN T HE HIG H C OU R T OF KA R NA TA KA
CIR C UIT B E NC H A T D HA R W A D
DATE D THIS TH E 20 T H DA Y OF MAR CH 20 13
PRES ENT
T HE HO N 'B L E M R . JUS TICE B .V .P I NT O
AND
T HE HO N 'B L E M R . JUS TICE H.S .K E M P A N NA
CRIMI NAL APPE AL NO. 2684/ 20 11
BETWEEN:
Basavareddy S/o.Yallareddy Madinoor
Age: 29 years, Occ: Agriculture,
R/o. B.Hosalli, Tq: & Dist: Koppal.
... Appellant.
(By Shri M.B.Gundawade, Advocate.)
AND:
The State of Karnataka,
Represented by the State Public
Prosecutor,
High Court of Karnataka,
Circuit Bench, Dharwad,
Through Koppal Rural Police.
... Respondent.
(By Shri V.M.Banakar, Addl. SPP.)
This criminal appeal is filed under section 374(2)
of Cr.P.C., seeking to set aside the judgment of
conviction and order of sentence, passed by the
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Sessions Judge, Koppal, in S.C.No.31/2010, dated
13.4.2011, for the offences punishable under Sections
498-A, 302, 201 read with Section 34 of IPC, etc.,.
This criminal appeal coming on for final hearing
this day, H.S.Kempanna, J., delivered the following
judgment.
JUDGMENT
The appellant/accused has preferred this appeal challenging the legality and correctness of the judgment and order dated 13.4.2011, passed in S.C.No.31/2010, by the Sessions Judge, Koppal, convicting him for the offences punishable under sections 498-A, 302 and 201 of IPC and sentencing him to undergo simple imprisonment for 2 years and to pay fine of Rs.2,000/-, in default to undergo simple imprisonment for 2 months, to undergo imprisonment for life and to pay fine of Rs.5,000/- in default to undergo simple imprisonment for 5 months and to undergo simple imprisonment for 2 years and to pay fine of Rs.1,000/- in default to undergo simple -3- imprisonment for one month, for the aforesaid offences, respectively.
2. The brief facts of the case are as under:-
The appellant/accused along with his mother accused No.2 were tried on the charge for the offences under Sections 498-A read with 34 of IPC, 302 read with 34 of IPC and 201 read with 34 of IPC. It is alleged that, the accused who are husband and mother-in-law of the deceased Basamma were subjecting her to cruelty and harassment both mentally and physically on the ground that she had not brought back pair of ear-stud from her parents house to the marital home and on the said ground on 7.12.2009 at about 12 noon in the house of the accused situated at B.Hosalli village coming within the jurisdiction of Koppal Rural Police Station did commit the murder of the deceased Basamma intentionally by strangulating with a rope and thereafter in order to cause disappearance of the evidence of murder, to screen -4- themselves from legal punishment, accused No.1 removed the rope with which he had committed the murder and hid the same in the house and thereby committed the aforementioned offences.
3. It is the case of the prosecution, the deceased Basamma is the daughter of PWs.3 and 4, who are residents of Alawandi village in Koppal Taluka. The deceased Basamma had been given in marriage to the present appellant/accused No.1 on 15.4.2009 and their marriage had been performed in front of the house of one Venkanagoudru Siddanagoudru at Muddaballi village of Koppal Taluka. At the time of marriage the deceased Basamma had been given two pairs of ear-studs. After the marriage the deceased came to her marital home situated at B.Hosalli village of Koppal Taluka and started living in their house. It is the case of the prosecution, when she came to the marital home, out of the two pairs of ear-studs which had been given to her by her parents PWs.3 and 4, she -5- was wearing one pair and the other pair had been left in her parental house. After she started living in the marital house of the accused, the accused started subjecting her to cruelty and harassment both mentally and physically on the ground to bring the other pair of ear-stud which had been given to her by her parents at the time of marriage. In due course of time the deceased conceived and was carrying. She was reporting the cruelty and harassment meted out to her, to her parents. About 15 days prior to the present occurrence, the deceased who had come to her parents house had been sent back to the marital home. The accused had continued their acts of cruelty and harassment. About two days prior to the occurrence i.e., on Saturday, PW.3 the father of the deceased had come to the house of the accused at B.Hosally village. On that night the deceased told her father PW.3 that she is suffering from chicoon-gunya and further asked her father to send her mother as she is also carrying by four months. PW.3 her father after hearing the same -6- from his deceased daughter left the house of the accused on the morning of Sunday i.e., a day prior to the occurrence, to his place. After he left to his village on Sunday morning, on 7.12.2009 Monday morning, he sent his wife PW.4 to the house of the accused. It is the case of the prosecution, on 07.12.2009, at about 12:00 noon, the accused in furtherance of their common intention did commit the murder of the deceased by throttling her with a rope and thereafter, the accused No.1 removed the rope from the neck of the deceased in order to cause disappearance of the evidence of murder committed by them and hid the same in his house to screen themselves from legal punishment.
4. It is further the case of the prosecution, on that day PWs.8 and 9, who are the neighbors of the accused had seen the accused and the deceased in their house i.e., the house of the accused, in the morning. Further, PW.4 who had been sent by PW.3, reached B.Hosalli village on 07.12.2009 at about 3:00 -7- p.m. On alighting the bus at the said village she came to know through the villagers that her daughter has been murdered. Thereafter, she came to the house of the accused and there she saw her deceased daughter having been made to sit covered with a saree on the head and decorated with flowers. In the meantime, it is also the case of the prosecution, the villagers of B.Hosahalli village informed about the death of deceased to one Basareddeppa of the village of PWs.3 and 4, who in turn informed the same to PW.3, the father of the deceased. PW.3 thereafter secured his brothers and the relatives and came to B.Hosalli village at about 7:30 p.m. On reaching the village, he went to the house of the accused, there he saw his deceased daughter having been made to sit in a sitting position and her head having been tied to a peg nailed to the wall. The body of his deceased-daughter had been covered with saree and was also decorated with flowers. They noticed an injury on the forehead. Thereafter they removed the saree covered on the head -8- and also the flowers with which his daughter had been decorated. On removing the same, they saw injuries on the head and the neck. Thereafter, it is the case of the prosecution, PW3 proceeded to Koppal Rural Police Station and there he filed his complaint as per Ex.P.3 before PW.11-the PSI, who on receipt of the same, registered a case in Crime No.240/2009 for the offences punishable under Sections 498-A and 302 read with Section 34 of IPC, against the accused and issued FIR as per Ex.P.15 to the jurisdictional Magistrate. Thereafter, he handed over the further investigation of the case to PW12-the CPI.
5. PW12, on taking over the investigation, on 08.12.2009 proceeded to the scene of occurrence in the early hours, immediately he took steps to get the body shifted to the mortuary of Government Hospital at Koppal. Thereafter, since it came to his knowledge that the death of the deceased had occurred within seven years of the marriage, he sent a requisition to the -9- Taluka Executive Magistrate, to hold inquest over the body, in pursuance of which PW10-Taluka Executive Magistrate held inquest over the body of the deceased and drew up the inquest panchanama as per Ex.P.12, in the presence of the pancha-PW5 and others. He also recorded the statements of the blood relatives of the deceased at the time of inquest. After completing the inquest, PW10-the Taluka Executive Magistrate sent a requisition to the Medical Officer to conduct postmortem examination over the body of the deceased, in pursuance of which, PW7-the Medical Officer conducted autopsy over the body of the deceased and issued postmortem report as per Ex.P.16. PW12 continuing the investigation drew up the scene of occurrence of panchanama as per Ex.P1 in the presence of the panch-PW.1. Thereafter, he also recorded the statements of PWs.8 and 9, the neighbors of the accused and other witnesses. He also deputed his staff to trace and apprehend the accused. Accordingly, on 08.12.2009 at about 4:00 p.m. he
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arrested the accused, on being produced by his staff. On interrogation of the accused, he recorded the voluntary statement of accused No.1, as per Ex.P.21, in pursuance of the same, he seized the MOs.1 and 2 under the panchanama Ex.P.2, in the presence of the panchas PWs.1 and 2. Thereafter, on completion of the arrest formalities, got both the accused remanded to judicial custody. PW.12 continuing the investigation also seized the clothes found on the body of the deceased produced before him after the postmortem examination was completed, under the Mahazar Ex.P.22. Thereafter, PW.12 also got the sketch-Ex.P.27 prepared through PWD Authorities by issuing necessary requisition. He also forwarded all the seized articles in the case for subjecting to the chemical examinations to FSL office and also recorded the statements of the witnesses, examined on behalf of the prosecution and cited in the charge sheet. Thereafter, on securing the relevant documents from the concerned authorities, including the articles sent for chemical
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examination, as the investigation had been completed, he submitted the final report against the accused before the jurisdictional Magistrate, who in turn committed the case of the accused to the Court of Sessions, which on receipt of the records secured the presence of the accused, framed charges as against them as aforesaid, to which they pleaded not guilty and claimed to be tried.
6. The prosecution in support of its case, in all examined PWs.1 to 12 and got marked Exs.P.1 to P.27 and MOs.1 to 4. The accused during the course of cross-examination of prosecution witnesses got marked Exs.D.1 to D.3.
7. After the closure of the prosecution evidence, the accused denied all the incriminating circumstances that were put to them found in the evidence of the prosecution witnesses in their examination under Section 313 of Cr.P.C. They also submitted that they have no defence evidence to lead. Total denial of the
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prosecution case is the defence of the accused. (Note:
The accused No.2 during the course of trial expired on 09.02.2011, as such her case came to be abated.)
8. The learned trial Judge on considering the evidence and the documents placed on record, came to the conclusion that the prosecution has established the charges levelled against the accused and accordingly, by the impugned judgment and order, convicted and sentenced him as aforesaid.
9. The appellant/accused being aggrieved by the judgment and order of conviction and sentence is in appeal before this Court.
10. Sri.M.B.Gundawade, the learned counsel appearing for the appellant/accused assailing the impugned judgment and order contended, t he case of the prosecution rests upon the circumstantial evidence. There is absolutely no incriminating circumstances found against this accused projected
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through the evidence of the prosecution witnesses. In this connection, he submitted, absolutely there is no evidence to show that this accused was present in the house at the time of occurrence on 07.12.2009. The only evidence is that of PWs.8 and 9. The said witnesses have turned hostile to the case of the prosecution. Apart from the evidence of PWs.8 and 9, there is no other evidence placed on record to show that this appellant/accused was in the house and he is responsible for the murder of the deceased. Admittedly, the evidence on record reveals, when PW.4 the mother of the deceased came near the house of the accused, many people i.e., the villagers of B.Hosalli village had gathered near the house and the body of the deceased had been made to sit in the sitting position, the head of which had been tied to a peg nailed to the wall. There is no evidence to show that the accused was either near the house at the time of occurrence or prior to the occurrence. According to the accused, on that day, he was in his lands, he was secured near the
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house but he was prevented from entering the house to see the body of his wife. He has no nexus whatsoever with the murder of his wife. The learned counsel further contended, absolutely there is no evidence forthcoming against appellant/accused to show that he had subjected the deceased to cruelty and harassment on the ground that she should bring the ear-stud, which had been kept in her parents house. That harassment, according to the prosecution is only by accused No.2 who has expired and whose case has been abated. In the light of this, the theory of the prosecution that this accused has committed the murder of the deceased on the ground that the deceased had not brought the ear-stud, which she had kept in her parents house cannot be believed. Since, there is no clinching evidence and as there is no nexus of the accused with murder of the deceased, the learned trial Judge without appreciating the entire materials on record in its right perspective has come to an erroneous conclusion in holding that the accused is
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guilty of the offences charged against him, which finding of the learned trial Judge being contrary to the evidence on record cannot be sustained, it be set aside and the accused be acquitted of the charge levelled against him.
11. Countering the submissions made by the learned counsel for the appellant, Shri V.M.Banakar, the learned Addl. SPP, supporting the impugned judgment and order contended, the evidence of PWs.3 and 4 clearly goes to show that it is the accused who has committed the murder of the deceased. The evidence on record discloses, the deceased was living with the accused in his house on the date of occurrence. The body of the deceased is found in the house of the accused. As per the medical evidence on record, more particularly that of PW.7, who has conducted autopsy it reveals, the deceased had sustained fracture of her hyoid bone, cricoid cartilage, thyroid cartilage and tracheal rings, which would
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indicate that the deceased has been throttled to death. It is the case of the accused that the deceased had fallen down from the steps and had died. The same cannot be believed, in view of the injuries the Medical Officer has noticed on the body of the deceased. As the opinion of the doctor clearly discloses that the death is due to asphyxia as a result of throttling, the theory of the deceased falling down from the steps and died cannot be believed. The trial Judge on appreciation of the entire material on record despite PWs.8 and 9 having turned hostile, relying upon the evidence of PWs.3 and 4 and the recovery made at the instance of the accused has come to the conclusion that the prosecution has established the charge levelled against the accused. The said finding in the circumstances having been based on facts and evidence does not suffer from any infirmity calling for interference in this appeal. Hence it be dismissed.
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12. Having regard to the aforementioned facts, rival contentions, the evidence and the documents on record, the points that arise for our consideration are as under:
(i) Whether the prosecution has established that the deceased Basamma has died a homicidal death?
(ii) If so, whether the prosecution has
established that the accused is
responsible for the homicidal death of the deceased Basamma and have caused disappearance of the evidence of murder to screen themselves from the legal punishment?
(iii) Whether the prosecution has
established that the accused had
subjected the deceased to cruelty and harassment on the ground that she had
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not brought a pair of ear-studs, which had been given to her from her parents house?
(iv) Whether the impugned judgment and order of the trial Court calls for any interference?
13. PW.7 is the Medical Officer, who has conducted autopsy over the body of the deceased. PW.7 in her evidence has stated that on 8.12.2009 she conducted autopsy along with another Medical Officer by name Shri Laxminarayan. At the time of postmortem examination they noticed the following external injuries.
(i) There was a bone deep irregular wound with loss of skin of size 10 x 8 cm vertex. Exposure of bone present. There was fracture of occipital bone.
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(ii) There was a bone deep lacerated wound over forehead of size 5 cm x 2 cm. With fracture of frontal bone.
(iii) Conjuctival haemorrhage was present.
(iv) There was a ligature mark present extending from right mastoid process to left mastoid process across the neck.
(v) There was fracture of hyoid bone.
Cricoid cortilage, thyorioid cortilage and trachal rings.
14. She has further stated that on dissection of the body they did not notice any internal injuries. But the foetus found in the womb was 3-4 months old. The above injuries were anti-mortem in nature. The death might have occurred about 24-30 hours prior to conducting of postmortem examination. She is of the opinion that the death is due to asphyxia, as a result of strangulation and also due to head injury. She has issued the postmortem report as per Ex.P.16. This evidence of PW.7 is further fortified from the evidence
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of PW.10 the Taluka Executive Magistrate, who has held inquest over the body of the deceased. His evidence reveals, at the time of inquest he and the panchas noticed the injuries on the body of the deceased as reflected in the postmortem report Ex.P.16. The evidence of PWs.3 and 4 the parents of the deceased also go to show that they saw the injuries on the body of the deceased. In the cross-examination of these witnesses, nothing has been brought on record to discredit their testimony with regard to the injuries that have been noticed by them on the body of the deceased. PW.7 has opined that the death is due to the injuries noticed on the body of the deceased. Apart from the same, homicidal death of the deceased was also not disputed to before us. Therefore having regard to the aforementioned evidence on record, we are of the clear view that the deceased Basamma has died on account of the injuries sustained by her and therefore the prosecution has established that she has died a homicidal death.
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15. The prosecution in order to connect the accused with the homicidal death of the deceased have relied upon the circumstantial evidence. The circumstances that have been pressed into service are, the deceased living in the house of the accused at B.Hosalli village. The body of the deceased with injuries having been found in the house of the accused. The deceased having been subjected to cruelty and harassment by the accused on the ground of she having not brought the ear-studs which had kept in her parents house. The prosecution in order to establish these circumstances have mainly relied upon the evidence of PWs.3 and 4 coupled with the evidence of PWs.8 and 9 who are the neighbours of the accused. Among these witnesses PWs.8 and 9, who are the neighbours of the accused and are residents of B.Hosalli village have turned hostile to the case of prosecution. Therefore their evidence is of no avail in any manner. The evidence of PW.3, the father of the deceased discloses, about two days prior to the
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occurrence i.e., on Saturday he had come to the house of the accused. On that day he came to know through his deceased daughter that she is suffering from chicoon-gunya and she requested him to send her mother as she is also carrying by four months. He left the village of the accused on the morning of Sunday i.e., a day prior to the occurrence. After he left to his village Alawandi, he informed his wife PW.4 of what his daughter had told him. Accordingly on 7.12.2009 the date of occurrence he sent his wife to the house of the accused with a direction to carry the food items required for his pregnant daughter. The evidence of PW.3 discloses that his wife left Alawandi village at 1.00 pm to B.Hosalli village. The evidence of PWs.8 and 9 who are the neighbours of the accused reveal that the deceased was living in the house of the accused at B.Hosalli village. The deceased was living in the matrimonial home i.e., the house of the accused, is not disputed in this case. PWs.8 and 9 who have turned hostile have stated that, accused No.2 told them
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that the deceased has died on account of falling down from the steps. But a perusal of the injuries that have been noticed on the body of the deceased by PW.7- Medical Officer, who has conducted autopsy would reveal that, the deceased could not have sustained the said injuries on account of falling from the steps, as we find from the evidence of PW.7-the Medical Officer, that there was a ligature mark extending from right mostoid process to left mostoid process across the neck, fracture of hyoid bone, Cricoid cartilage thyroid cartilage and trachal rings, apart from the other fractures which have been noticed on the head of the deceased. If a person were to fall from the steps, it is impossible that he would have sustained fracture of the hyoid bone, cricoid cartilage, thyroid cartilage and trachal rings. This itself would indicate that the deceased must have been throttled to death as alleged by the prosecution.
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16. The evidence of PWs.3 and 4 clearly goes to show that the body of the accused was found in the house of the accused. PW.3 in his evidence has stated that, when he came to the house of the accused in the night at 7.30 a.m., along with his relatives, he noticed the body of his deceased daughter was made to sit in the sitting position and body of his deceased daughter was decorated with flowers and the head was covered with saree. He noticed there was an injury on the forehead. Suspecting the same, when he opened the saree and also the flowers with which the body was decorated, at that time, he noticed severe injuries on the head and also on the neck.
17. PW.4, the mother of the deceased has also stated in her evidence, when she came to the house of the accused, villagers were present and the body was made to sit in the sitting position with her head having been tied to a peg nailed to the wall. The very fact of finding, the body of the deceased with injuries in the
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house of the accused, that too with the fracture of hyoid bone, cricoid cartilage and other ancillary fractures, would clearly go to show that the deceased must have been throttled as fortified from the evidence of PW-7, the Medical Officer who has conduced the autopsy. The fact of finding, injuries found on the body of the deceased would go to show that the accused are the culprits. Since accused No.2 has expired during the course of trial, her case has abated. Therefore, in the facts and circumstances, appellant/accused is guilty of committing murder of the deceased. It was vehemently contended that there is no evidence or whatsoever to show that the accused was present in the house. But the evidence on record goes to show that the deceased was living with the accused in his house. The body of the deceased is found in his house. Therefore, it is the accused who has to spell out the death of the deceased who admittedly is his wife, whose body was found in his house. The explanation offered is that he was in the land and he was secured near his house. This
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explanation has been offered in his examination under Section 313 of Cr.P.C. In the light of the evidence of PWs.3, 4, coupled with the other evidence on record, we are unable to accept the said statement of the accused. Therefore, in the circumstances, we are of the view that the evidence of PWs.3 and 4 coupled with the other material on record would clearly go to show that it is the accused who is responsible for the murder of the deceased- Basamma who is none other than his wife. Further, the evidence on record more particularly of PWs.3 and 4 also reveals that the accused were subjecting the deceased to cruelty and harassment on the ground that she has not brought back pair of ear- studs from her parents house.
18. The learned trial Judge, in our view, on appreciation of the entire evidence on record has come to the right conclusion in holding that the prosecution has established the charge levelled against the accused, which finding in our view having been based
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on facts and evidence does not suffer from any infirmity calling for interference in this appeal. Accordingly we do not find any merit in this appeal and it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Mrk/BS