Karnataka High Court
P. Chandra vs The State Of Karnataka on 3 February, 2018
Author: K.N. Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2018
:PRESENT:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
:AND:
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL NO.1339/2012
BETWEEN:
P. CHANDRA, S/O. LATE BABU,
AGED ABOUT 46 YEARS,
COOLIE, NETLI 'B' ESTATE,
ULUGULI VILLAGE, SUNTICOPPA,
MADAKERE DISTRICT - 571 237. .. ...APPELLANT
(BY SRI L. HARISH KUMAR, ADV.)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY THE CPI,
KUSHALNAGAR CIRCLE, KUSHALNAGAR,
KODAGU DISTRICT-571 234. .. ..RESPONDENT
(BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) CRPC
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 13.09.2012 PASSED BY
THE SJ, KODAGU, MADIKERI IN SC NO.79/2008 -
CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE
P/U/S.302 OF IPC. THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO LIFE IMPRISONMENT AND PAY
FINE OF RS.20,000/- (RUPEES TWENTY THOUSAND ONLY),
IN DEFAULT TO PAY FINE, HE SHALL UNDERGO R.I. FOR
TWO YEARS FOR THE OFFENCE P/U/S.302 OF IPC.
2
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, K.N. PHANEENDRA, J. DELIVERED
THE FOLLOWING:
JUDGMENT
The appellant who has suffered a judgment of conviction and sentence passed by the learned Sessions Judge, Kodagu at Madikeri, in S.C. No. 79/2008, has preferred this appeal, wherein the learned Sessions Judge has held him guilty for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a sum of Rs.20,000/- fine and in default of payment of fine to undergo rigorous imprisonment for two years for the offence under Section 302 of IPC.
2. Before adverting to the evaluation of the materials on record, it is just and necessary to have brief factual matrix of the case:
The accused is none other than the husband of the deceased, Padma. The accused, deceased Padma and their daughter 'Kumari Manjula' (PW2) were residing together in a house belonging to PW15 Shri. P.S. Appanna. Accused and deceased were also 3 working in the estate of the said PW15 Appanna. One C.S. Biddappa, PW-16, was often visiting the house of the accused. In fact, the accused suspected the conduct of his wife Padma with Biddappa and he was suspecting that they might have illicit relationship with each other. In this context it is alleged by the prosecution that, on 30.6.2008, the accused and deceased quarreled with each other both in the morning as well as in the evening the accused picked up quarrel with his wife and assaulted her and caused severe injuries on her.
3. In fact, it is alleged that, two days prior to the incident also, i.e., on 28.6.2008 there was quarrel between husband and wife at that time, he pushed her down, as a result of which, she suffered some injuries and thereafter she was taken to the hospital and given treatment. Again on 30.6.2008 in the morning and evening the accused and deceased quarreled with each other. Particularly it is alleged that at 4.20 PM on 30.6.2008 the accused mercilessly assaulted the deceased with clubs as well as chopper on various parts 4 of her body and later she succumbed to those injuries and died in the house. PW2 Manjula was very much present in the house and thereafter it is the case of the prosecution that accused and PW2 went to the house of PW15 and told him that the deceased was assaulted by the accused. At that time, accused told PW-15 that Biddappa had illicit intimacy with the deceased and accused also told PW-15 that his wife Padma was unable to come to the house of PW-15. After hearing them, PW-15 himself went to the house of accused and saw the dead body of the deceased. It appears, thereafter a complaint came to be lodged by PW-1, who is none other than the brother-in-law of the accused who came to know about the death of the deceased through PW-2 Manjula.
4. On the above said allegations, the accused was apprehended and he was secured by the Sessions Court After committal by the Magistrate and charges were framed against the accused for the offence punishable under Section 302 of IPC, the Sessions Judge has held the trial. In order to bring home the guilt of the 5 accused, the prosecution examined as many as 32 witnesses as PWs.1 to 32 and got marked exhibits P1 to P19 documents and Ex.D1 was also marked in the statement of PW-7. Mos.1 to 8 are also marked. The accused was also examined by the learned Sessions Judge u/s.313 of Cr.PC. On perusal of the 313 statement and overall cross examination of the witnesses, there were no specific defence taken up by the accused. On the other hand, it is the total denial of the prosecution case.
5. On overall analysis of the entire oral and documentary evidence on record, the learned Sessions Judge found the accused guilty for the above said offence and sentenced him accordingly.
6. We have heard the arguments of the learned counsel for the appellant and the learned High Court Government Pleader for the State. The learned counsel appearing for the appellant has made all his efforts to convince this court with reference to the contradictions 6 and omissions in the evidence of the prosecution witnesses.
7. We also appreciate and place it on record the assistance rendered by the learned counsel Shri Harish Kumar, for the appellant in this regard.
8. The learned counsel for the appellant contended that, with regard to the recovery of katti (chopper), there is lot of discrepancy and further there is no specific evidence to establish that, the accused assaulted the deceased with such chopper. The evidence of the doctor also does not show as to what exactly the time of death. There are some discrepancies in the evidence of PW-2 with regard to the time of incident and also the presence of some of the witnesses at 4.30 p.m., when the incident happened. He also drawn our attention that, the evidence of other witnesses particularly who are cited as eyewitnesses also not helpful to the prosecution as they turned hostile to the prosecution. He further submitted that PW-2 is the interested/related witness. Her 7 evidence is also full of discrepancies. Therefore, her evidence cannot be believed.
9. Sri Vijay Kumar Majage, learned Addl. State Public Prosecutor, in support of the judgment of the Trial Court submitted that though there are some contradictions and omissions in the evidence of the prosecution witnesses, they are all minor contradictions and omissions and none of those contradictions and omissions, go to the root of the prosecution case in order to throw out the entire case of the prosecution. Therefore, he requests this court to confirm the judgment of conviction and sentence passed by the Trial Court.
10. We have carefully once again re-evaluated the materials on record. On re-evaluation of the entire materials on record, the point that would arise for our consideration is:
"Whether the appellant has made out any reasonable or substantial ground to interfere with the judgment of conviction and sentence passed by the Trial Court?"8
11. Before adverting in detail the materials available on record, we just place it on record the description of the evidence on the side of the prosecution recorded before the Trial Court.
12. PW-1 P.K. Umesh, the complaint is the brother-in-law of the accused. He received the information from PW-2 Manjula and lodges a complaint. There is no dispute with regard to the death is concerned in this case and relationship between the accused and this witness and PW-2.
12.1 PW-2 Manjula, daughter of the deceased and the accused, is cited as an eye-witness. She has specifically stated about the incident and also the previous and subsequent conduct of the accused.
12.2 PWs.3 and 9 are the inquest panchas and they have stated about the inquest panchnama conducted as per Ex.P3 by the Police. PW-4 is the witness who shifted the body of the deceased to the Hospital at the request of the accused. 9
12.3 PWs. 5, 6 and 7 have stated about the previous attack on the deceased by the accused. Also PWs. 5 and 7 have spoken to about what happened at 4.30 p.m., on the date of the incident.
12.4 PWs.10, 11 and 12 are the witnesses to the seizure of two clubs and one chopper under Exs.P4 and P5.
12.5 PWs.13 and 14 are the witnesses to Exs.P2 and P6 which are the spot mahazars drawn by the Investigating Officer PW-32.
12.6 PW-15 Appanna is the employer of the accused and deceased and some of the other witnesses. He has specifically stated about the previous conduct of the accused and his suspicion about the relationship between his wife and Biddappa and also he states about the recovery of chopper MO-3 under Ex.P5 Mahazar and how he came in to possession of the said chopper.
12.7 PW-16 Biddappa is an hearsay evidence. He only states that, he often visiting the house of the 10 accused, but he has not stated about any intimacy between himself and the wife of the accused.
12.8 PWs. 17 and 20 are the other two witnesses cited as eye-witnesses but they never supported the case of the prosecution and they turned volta-face totally.
12.9 PWs.18 and 19 are the witnesses for Ex.P8 which is the Mahazar drawn whereunder, the police have seized MOs.4 to 8 which are the clothes of the deceased produced by PW-25 one of the police in the Police Station. MOs.4 to 8 are the blouse, shirt, nighty, pettycoat and underwear of the deceased.
12.10 PW-21 Girija is the mother of the deceased. Her evidence is not so helpful to the prosecution because she is an hearsay witness though she narrates about the incident.
12.11 PW-22 K.M. Puttabasappa is the Panchayath Development Officer, who gave the house extract pertaining to the house of the accused PW-15 wherein the accused and the deceased were residing 11 therein. There is no dispute so far as this aspect is concerned. The said document is marked as Ex.P10.
12.12 PW-23 Junior Engineer who has drawn the spot sketch at the request of the Investigating Officer as per Ex.P11.
12.13 PW-24 is another important witness to the prosecution. Dr. Sridhar who conducted Post Mortem examination on the dead body of the deceased.
12.14 PW-25 was deputed for watching the dead body of the deceased and after the inquest she shifted the dead body to the Hospital for Post Mortem examination and she has produced the clothes before the Investigating Officer and they were seized under Ex.P-8 as per MOs.4 to 8.
12.15 PW-26 Shivappa is the Police Person who carried the incriminating articles to the FSL.
12.16 PW-27 is the person who apprehended the accused and given his report as per Ex.P14. This aspect is also not in dispute.
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12.17 PW-28 is the Scientific Officer who gave the information with regard to the MOs. Seized under this particular case as per Ex.P15 and P17.
12.18 PW-29 is the another police personnel who carried the FIR to the Court as per Ex.P8. No delay is there, with regard to submitting of the FIR to the Court and no much denial or cross examination so far as this witness is concerned.
12.19 PW-30 H.C. Manjunath who brought back the articles from FSL.
12.20 PW-31 Mr. Thimmegowda after receiving the complaint from PW-1 as per Ex.P1 registered a case in Crime No.58/2008 and handed over the further investigation to PW-32.
12.21 PW-32 is the Investigating Officer who after the arrest of the accused recorded the voluntary statement of the accused and speak about recovery of MOs.1 & 2 and also recovery of MO3 under Ex.P4 & P5 produced by PW-15. PW-32 has also stated the sequence of events of this particular case. 13
13. Though some of the witnesses are not so relevant in this case as we have already noted above, the material witnesses in this particular case is PW-2 who is the eye witness to the incident. Of course, PWs.17 and 20 though they were cited as eye witnesses, they never supported the case of the prosecution, but PW-2 has stated about their presence in her evidence. In this back ground, it is just and necessary to peruse the evidence of some of the important witness in this case.
14. There is no dispute with regard to the homicidal death of the deceased. It is seen from the evidence of the inquest panchas i.e., PWs.1 & 2 who have actually seen the deceased. PW2 is the witness who has also seen the body of her mother and PWs.3, 4, 6 and 9 who are the witnesses to the inquest, they have categorically stated about the presence of the injuries on the dead body of the deceased Padma.
15. Apart from the above, the evidence of the doctor PW-24 who has specifically stated that, the 14 deceased has sustained severe injuries on all over the body and there were as many as 17 injuries on the dead body. Out of them, four were incised wounds and there was a serious lacerated injury to the left portion of the head of the deceased. Ultimately, the doctor has opined that, the death was due to the bleeding and brain hemorrhage. He has also opined that, those injuries could be caused by using clubs and chopper. Therefore, looking to the above said facts and circumstances, the prosecution has successfully established a homicidal death of the deceased.
16. The eye witnesses version PW-2 play a dominant role in this particular case. PW-2 Manjula was aged about 13 years as on the date she gave the evidence before the court. Therefore, the court has to very carefully consider the evidence of such child witness, much importance must not be given to the minor, discrepancies or contradictions. Overall reading of the evidence of this witness, if it gives a picture that, she was actually the eye witnesses to the incident and she has actually seen the incident that would suffice to 15 accept her evidence. In this back ground, if we see the evidence of this witness, it is evident that, the learned Sessions Judge has examined the witness to test the capability of the witness before recording the evidence pertaining to the case. After satisfying himself that, the witness understands the question that may be put to the witness and can give coherent answer and thereafter recorded the evidence of this witness.
17. PW-2 has categorically stated about the incident and identified that accused as her father. Deceased was her mother and accused was in the habit of consuming alcohol and assaulting her mother. She has specifically stated that, on the day of the incident, the accused came in a drunken stage and assaulted the deceased with club and chopper. She has further stated that, on that day, since morning to evening the accused assaulted the deceased. She has also stated that due to the suspicion that the deceased and one Biddappa were having some illicit intimacy with each other, accused was humiliating her mother. It is stated that when the accused and deceased were quarreling with each other 16 one driver Ganapathi came there and tried to resolve the dispute, but in spite of that, accused questioned the said Ganapathi as to why he has to interfere with the affairs of the family of the accused by saying so, he dragged the deceased inside the house and again assaulted her and on that particular day, it appears the deceased died. This witness further says that on the next day herself and her father went to the house of PW-15 and brought some money. By that time, she saw that her mother was dead in the house and thereafter, the dead body was shifted to the hospital and doctor after examining told that Padma had already breathed her last. She has also deposed that, on the next day, the police had been to her house and drew up mahazar as per Ex.P2 as Spot Mahazar and collected the material objects i.e., MOs.2 & 3.
18. The learned counsel for the petitioner strenuously contends that MO3 was not actually seized in the house of the accused. There is serious discrepancy with regard to the evidence of this girl with regard to the recovery of MO.3. We will consider the 17 said aspect while considering the recovery of MO3 while dealing with the evidence of other witnesses.
19. In the course of cross examination, some questions have been put with regard to the relationship between Biddappa and the deceased Padma, but she never stated anything except stating that the said person often visiting their house and this was not relished by the accused person. She has also stated that the accused was addicted to alcohol, therefore, she was not happy with her father, but she was very careful in answering that she gave false evidence against her father.
20. Therefore, looking to the above said facts and circumstances in the course of cross examination, the defence counsel tried to elicit from the mouth of this witness that because this witness was not happy with her father, that is the root cause for giving false evidence against her father. In fact, it is un-imaginable because of the reason that the person who died, is none other than the mother of this witness. We can accept 18 that if some other person died, so that the witness can falsely implicate some body, the relationship in such circumstance play a dominant role, the accused is no other than the father. The witness is very stubborn, so far as the conduct of the accused is concerned there is no untruth word stated by this witness in the course of cross examination though some sequence of events have not been properly stated.
21. The learned counsel further contended with regard to this witness that when she went to the house of PW-15 along with accused No.1, she could have disclosed the death of her mother before PW-15.
22. It is evident from the records that after assaulting the deceased, A-1 and PW-2 may not be knowing that the death has occurred instantaneously perhaps that may be the reason that they did not tell anything about the same before PW-15. However, that itself is not sufficient to throw out the evidence of PW-2.
23. It is worth to mention here a decision of the Hon'ble Apex Court reported in AIR 1983 SC 19 753 between Bharwada Bhoginbhai Hirjibhai, and State of Gujarat, wherein the Hon'ble Apex Court has held at Head note B that -
"Over much importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
24. Therefore, the court has to see even though some events have not been stated, on overall reading of the evidence of this witness, we can repose confidence on the evidence of this witness.
25. Though PWs.17 and 20 have turned hostile to the prosecution, the court is of the opinion that, the evidence of PW-20 is trust worthy for acceptance and the hospitality of PWs.17 & 20 will not in anyway affect the case of the prosecution. The motive for the commission of the offence is also elicited from the 20 evidence of PW-2. PWs.1, 6 & 7. All these witnesses in their evidence have categorically stated that the accused had been suspecting the conduct, fidelity, loyalty of the deceased Padma because of that reason, he was always quarreling with his wife. Though there may not be any sufficient and concrete evidence to establish that, there was any illicit intimacy between the accused and the deceased Padma, nevertheless, it is the case of the prosecution that there was intimacy between PW-16 and deceased Padma and about the suspicion in the mind of the accused.
26. Next comes to the other circumstance. Actually, on that particular date, PWs.5, 6 and 7 were also visited the house of the accused. PW-5 Prabhakar has stated that, on the date of the incident in the morning at about 8 or 8.30 a.m., he heard the galata near the house of the accused. He went along with Biddappa PW-16 to the house of the accused and at that time, the accused and the deceased were quarreling each other. This witness enquired as to why he was quarreling with his wife. Then the accused told him to 21 ask the children why he was quarreling with his wife. Then, PW-2 on being enquired, and told this witness that because PW-16 Biddappa often visiting the house of the deceased, due to some suspicion the accused had been quarreling with the deceased. These witnesses saw that due to the assault, by the accused Padma sustained injuries. Thereafter, these witnesses PWs.5 and 16 went to PW-15 and informed the same to PW-15 and thereafter, they all came back, took Padma to the Hospital and brought her back to the house. Again on the same day, at about 4.30 p.m., when these witnesses were passing near the house of the accused i.e., PWs.5, 6 & 7, they saw the accused quarreling with his wife. Again when this person intervened, the accused took it as an exception and told him not to interfere with his family affairs. Immediately these witnesses went to PW-15 and told about the galata and PW-15 in his evidence has stated that having received such information he went to the house of accused and he saw the accused was holding a chopper in his hand and Padma was lying on the ground with some injuries. 22 PW-15 asked the accused to throw away the chopper and the same was produced on the next day when the Investigating Officer came in search of the said chopper. So, it clears the doubt that, these three witnesses on that particular day had been to the house of the accused at about 4.30 p.m., no much cross examination is done so far as this aspect is concerned. On the other hand, it is elicited that, the distance between the place where the incident happened and the place where these persons were passing, was about 50 feet. Therefore, there were chances of hearing the quarrel between the accused person and the deceased while going to that particular spot.
27. In the course of cross examination so far as this quarrel and other things are concerned, nothing has been disputed. Therefore, the circumstances which have been explained by these witnesses show that, even on the previous day about two days prior to and on the day of incident in the morning and evening there was quarrel between the accused and the deceased. But nothing has been elicited from the 23 mouth of these witnesses or from the mouth of PW-2 actually whether Padma was raising any voice against the accused or she was retorting the accused in any manner so as to come to any other conclusion that the accused due to enragement, has assaulted his wife. Therefore, the evidence of these witnesses in our opinion cannot be in any manner disbelieved.
28. In the course of cross examination of these witnesses and considering the chief examination, it is evident that all these persons were the co-workers of accused, working under PW-15. PW-15 is the employer of these witnesses and also the deceased Padma. PW- 15 again gave the evidence regarding the previous conduct of the accused. It is said that the accused was informing PW-15 about his suspicion with regard to the illicit intimacy between PW-16 Biddappa and Padma. Therefore, the evidence of this witness including PW-15 so far as these aspects are concerned gains importance. Their evidence cannot be easily brushed aside unless there is any elucidation of facts in 24 the course of cross examination any strong material to disbelieve them.
29. Now, we shall discuss the recovery of incriminating articles MOs.1 to 3.
30. There is no discrepancy or dispute with regard to the seizure of MOs.4 to 8 the clothes of the deceased. As we have already discussed while cursory looking at the evidence of the witnesses that the said clothes were seized by the Investigating Officer during the course of investigation and they were sent to PW-28 for scientific examination.
31. PWs.10, 11, 12 and 15 coupled with the evidence of PW-32 are the Mahazar witnesses to establish recovery of MOs.1 to 3 under Exs.P4 & 5. PW- 10 has stated that when the police have visited the spot on the next day of the incident, they recovered two clubs in the house of the accused under Ex.P4. He identified those clubs as MOs.1 & 2. In the course of cross examination, it is not even denied with regard to the recovery of these articles. But, on the other hand, 25 it is suggested to him that after going to the spot, he came to know about the murder of Padma committed by A1. PW-11 has deposed in similar fashion and he signed the mahazar as Ex.P-4. He has also identified MOs.1 & 2. PW-11 also stated that, after recovery of MOs.1 & 2, police took this witness to the house of PW- 15, PW-15 has produced the chopper to the police which is marked at MO3 in the course of cross examination, it is elicited that at the time of recovery of chopper, other witnesses were also present and one Umesh also signed the mahazar. It is suggested that in the presence of this witness, no chopper and other clubs were recovered but the said suggestion has been denied. Therefore, nothing has been elicited in the course of cross examination to disbelieve as to why he has to depose falsehood against the accused. The evidence of this witness is fully corroborated from the evidence of PW-
15. As we have already observed that, there is no hatredness or ill will against the accused elicited in the course of cross examination. PW-15 in fact has stated that on the next day of the incident, the police came to 26 him and he has produced chopper to the police and handed over the same.
32. It is worth to repeat the evidence of PW-15. PW-15 has stated that on the previous day he had been to the house of the accused after receiving the information that, accused and his wife were quarreling. When he visited the house of the accused, he saw the accused holding chopper in his hand and he actually requested the accused to throw away the said chopper and thereafter he preserved the same. So far as this aspect is concerned nothing has been controverted in the course of cross examination, except suggesting that, the accused was suspecting the conduct of Biddappa with his wife. The cross examination of this witness clearly show that the accused was complaining against Biddappa even much earlier to the incident and he received the information on the day of the incident about the quarrel took place between accused, he went to the house of accused, took away the chopper. These facts are not controverted in the cross examination. Therefore looking to the above said 27 circumstance, though there is some discrepancy with regard to the recovery of chopper compared to the evidence of PW-2 and the other witnesses, but consistency with regard to the panch witness and PW-15 has to be preferred compared to the evidence of PW-2 as she is a witness of tender age, she might have confused with the sequence of events and stated in such a manner.
33. We have no hesitation to hold that the prosecution has also proved the recovery of these items as noted above. The prosecution has also connected these incriminating articles which were seized from the house of the accused as well as from PW-15. The abundant evidence we have already considered that PW-2 has specifically stated that the accused has used a chopper for the purpose of assaulting the deceased which is also fully corroborated from the evidence of doctor PW-24. PW-24 the doctor has stated that, there were four incised wounds on different parts of the body of the deceased. The incised wounds cannot be caused by clubs it can only be caused by using a sharp edged 28 weapon. The sharp edged weapon is only a chopper in this case, the other abrasions can be caused by clubs. Therefore, in this manner the connection with the act of the accused and the injury found on the deceased is also established. Apart from the above, the evidence of PW-28 Scientific Officer and on perusal of Ex.P-15 and 17 it also makes abundantly clear that the blood stains which were found on the clothes of the deceased i.e., MOs.4 to 8 and as well one of the club MO1 and chopper MO3 are of the same group i.e., A group blood pertaining to the deceased. Therefore, we have to come to an inevitable conclusion that the prosecution has established the seizure of the incriminating articles successfully and connected the same with that of the blood group of the deceased and use of the weapons by the accused.
34. Looking to the above said facts and circumstance, the trial judge in our opinion, has emphatically discussed each and every minute evidence and rightly arrived at a conclusion that the prosecution has proved its case beyond reasonable doubt. There is 29 absolutely no reason to interfere with such a reasoned judgment of the Trial Court. Hence, the appeal is devoid of merit and the same is liable to be dismissed. Accordingly, we proceed to pass the following:
ORDER The Appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE PL*