Karnataka High Court
Parashuram @ Rama vs State Of Karnataka on 14 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 279, 2020 (2) AKR 479
Bench: K.N.Phaneendra, Pradeep Singh Yerur
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IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 14 T H DAY OF JANU ARY 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL APPEAL NO.100118/2015
BETWEEN:
PARASHURAM @ RAMA S/O. DURUGAPPA,
AGE 35 Y EARS, OCC: COOLIE,
R/O. DASHAMPUR, NOW GARAG, HOSPET TA LUK,
BELLARY DIS TRICT.
...APPELLANT
(BY SRI. R.M.JA VED, ADVOCA TE)
AND:
STA TE OF KARNA TAKA,
THROUGH SANDUR P.S., HOSPET,
BELLARY DIS TRICT, REP. BY SPP
HIGH COURT BENCH, DHARWAD.
...RESPONDENT
(SRI. V.M.BANAKA R, ADDL. S .P.P. FO R RESPONDENT)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) O F CR.P.C., PRAYING TO SET ASID E
THE SENTENCE AND ORDER OF CONVICTION IN
S.C.NO .49/2010, PASSED BY THE FAST TRACK COURT-
III, HOSPET DA TED 28.09.2011 CONVICTING THE
ACCUSED/APPELLANT TO UNDERGO LIFE
IMPRISONMENT FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC AND TO PAY RS .2,000/-
AS FINE IN DEFAULT SHALL U NDERGO SIMPLE
IMPRISONMENT F OR 6 MONTHS AND ETC.
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THIS CRIMINAL A PPEAL COMING ON FOR FINAL
HEARING THIS DAY, K.N.PHANEEND RA, J., MADE THE
FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and the learned SPP for the State.
2. We have carefully perused the entire material on record. The appellant was arrayed as accused No.1 in S.C.No.49/2010 on the file of the Fast Track Court III at Hospete. The Trial Court vide Judgment dated 20.09.2011, convicted and sentenced the accused for the offences punishable under Section 302 and 201 of IPC sentencing him to undergo imprisonment for life and to pay a fine of Rs.2000/- with default sentence for the offence under Section 302 of IPC and also sentenced him to undergo imprisonment for five years and to pay a fine of Rs.1000/- for the offence under Section 201 of the IPC.
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3. The brief facts of the case on hand as per the charge sheet filed by the police is that, the deceased is the wife of the accused. Their marriage took place long back and they were residing together at Dhasamapur village. They were blessed with two children and thereafter the accused started suspecting the fidelity of his wife. In spite of repeated advises by the family members he did not desist himself from suspecting the loyalty of his wife and in this context he was assaulting and ill-treating and harassing his wife. In this context, it is alleged that on 24.11.2009 the accused Nos.1 to 3 and the deceased 4 persons went to the forest area and only the accused Nos.1 to 3 came back from the forest area and the deceased did not come back. Suspecting some foul play, the complainant Yamunappa and others had been to forest area but they did not find any dead body lying there. However, they went to the house of the accused, there also they did not find the deceased :4: Sharadavva. Therefore, suspecting that the accused Nos.1 to 3 have committed the murder of the deceased in the forest area, a complaint came to be lodged as per Ex.P-1 by PW-1. On the basis of which the police have registered a case in Crime No.136/2009 for the offence under Section 302 and 201 of IPC, r/w. Section 34 and dispatched the FIR to the jurisdictional Magistrate. During the course of investigating, the police found that the accused persons are the culprits who have taken the deceased along with them to the forest area which is called as Jarkibande forest area and thereafter they committed the murder of the deceased Sharadavva. After committal proceedings and taking up the matter by the Sessions Court after securing the accused, the Trial Court had framed charges against the accused. In fact, the accused No.1 in the present appeal has pleaded guilty that he was the person who has committed the murder of the deceased. The other two :5: accused persons have denied the said charges levelled against them and claimed to be tried. Though the accused-appellant has admitted his guilt, but the Trial Court considering the gravity of the offence has not accepted the plea of guilt and directed the prosecution to proceed with the matter. The prosecution in order to bring home the guilt of the accused, examined 11 witnesses i.e. PW-1 to 11 and got marked Ex.P-1 to P-18 and material objects MOs-1 to 6. Ultimately the Court has come to the conclusion that the accused No.1 is the perpetrator of the crime and accordingly convicted accused No.1 and acquitted accused Nos.2 & 3. The State has not preferred any appeal against the said Judgment of acquittal so far as the other accused are concerned. The accused-appellant in fact answered some questions in 313 Statement also admitting his guilt and further he has not lead any defence evidence. The Trial Court after appreciating the entire oral and :6: documentary evidence on record, has convicted the appellant for the offence as noted supra and sentenced him accordingly. The said Judgment is called in question before this Court by the appellant.
4. The learned standing counsel Sri. Javed seriously contends before this Court the entire case revolves around the circumstantial evidence. So far as the motive is concerned, there is no much material and prosecution has examined some of the witnesses to show the last seen of the accused and the deceased together, but those witnesses have turned hostile to the prosecution. Therefore, the only circumstance pitted against the accused is that the dead body of the deceased was recovered at the instance of the accused No.1. Therefore on this strong ground the Trial Court has wrongly convicted the accused. The said sole circumstance may not be sufficient to convict the accused. Even otherwise, the learned counsel contended :7: that, there was ill-will and hatred between the husband and wife and they were quarrelling with each other always. May be due to some enragement the accused might have committed such an act. Therefore the offence may not fall under Section 302 of IPC, it may fall under Section 302(2) of IPC. Therefore, he contended the Trial Court Judgment requires to be set aside or modified.
5. Per contra, the learned SPP contended before the Court that, even during the course of cross- examination of the relative witnesses the accused No.1 has suggested through his counsel with regard to the existence of the dispute between himself and his wife and there was quarrel always between the accused and the deceased. This particular aspect shows that the accused was always suspecting the conduct of his wife, which actually lead to the commission of the offence by accused No.1. Another strong circumstance pleaded and :8: proved beyond reasonable doubt by the prosecution is that the accused was the author of the murder and the burial of the dead body in the forest area. He was having exclusive knowledge of that particular place, he took the police and the Asst. Commissioner for the examination of the body and in the presence of the Panch Witnesses, the body was examined and the dead body was recovered. There was absolutely no answer by the accused so far as this aspect is concerned. On the other hand he has admitted the same during the 313 Statement and he has not given any instructions to his client to cross-examine the said witness i.e. PW-6.
6. Therefore, there is strong evidence against the accused and prior to it has not committed any error in convicting and sentencing the accused. Hence, he pleaded for dismissal of the appeal.
7. The brief cursory look at the depositions shows that P.W.1 is no other than the father of the :9: deceased and he has stated about the conduct of the deceased and as well as the accused.
8. P.W.2 is none other than the wife of P.W.1, the mother of the deceased.
9. P.W.3 is the person who was examined before the Court to prove the last seen of the deceased with the accused, but this witness has not supported the case of the prosecution.
10. P.W.4 Hanumanthappa, who was examined to show that accused Nos.1 to 3 were the residence of his village. He has also not fully supported the case of the prosecution. During the course of cross- examination, he has admitted that accused Nos.1 and 2 had gone to the forest area and shown the place where the dead body was buried in the presence of the Assistant Commissioner.
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11. P.W.5 is another witness to the panch. Similarly spoken about the fact as Ex.P-4. He has also not fully supported the case. But he has stated in the course of cross-examination and after playing the DVD before the Court, he admitted that the accused No.1 showed the spot where actually the dead body of the deceased was buried and the dead body was recovered at the instance of the accused. The evidence of these witnesses have not been subjected to cross- examination, particularly by the accused and as could be seen from the evidence of P.W.6, the learned Judge has mentioned that the counsel appearing for the accused has specifically stated that he has not cross- examined so far as that witness is concerned.
12. P.W.8 is the another panch witness, who is a spot panch shown by the accused No.1 where actually the offence was committed which has no much significance, because it was only at the instance of : 11 : accused No.1 and nothing worth has been recovered from the spot.
13. P.W.9 is the Assistant Commissioner. The evidence of this witness plays a very important role. He has stated that on 27.11.2009 upon requisition from M.M.Halli Police, he visited the spot and accused No.1 had actually shown the spot where the dead body was buried and after exhumation, the said dead body was recovered.
14. P.W.10 Motilal, PSI is the person who registered the case, arrested the accused Nos.1 and 2, recorded their voluntary statements and on the basis of the voluntary statements, he has recovered one spade at the instance of accused No.1 and also recovered the dead body at the instance of the accused. It is also stated by him that he has drawn up the panchanama as per Ex.P-8 with reference to the recovery of the spade and also seized clothes on the dead body as per Ex.P- : 12 : 17, M.Os.3 to 5. He also got marked M.O.1 as the compact disc under which the recovery proceedings were actually recorded.
15. P.W.11 Ramakant is the person who filed the charge sheet.
16. P.W.7 is the Doctor who conducted the postmortem examination of the dead body of Sharadamma in the forest area itself and after conducting the postmortem examination, he has given the opinion that the death was due to compression of the neck of the deceased and the death has occurred about 3 to 4 days prior to the postmortem examination and he has issued Ex.P-10, the postmortem report.
17. On the basis of the above said witnesses, the prosecution wanted to establish the case against the accused.
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18. P.Ws.1 and 2 are the father and mother. It is worth to refer here, they have categorically stated that the accused and the deceased were living together and they were blessed with two children. The accused after some time started suspecting the conduct and fidelity of his wife and because of that reason, they suspected that he must have committed the murder of the deceased, though it is suggested that it is only an imagination of these witnesses in implicating the accused to the crime.
19. The Court cannot solely rely upon these witnesses, but what remains for consideration is that in the course of cross-examination also it is admitted that all was not well in the house of the accused, and accused and the deceased were not happily living together and there was some differences between the husband and wife.
20. The strong circumstance relied upon by the prosecution is the last seen of the accused and the : 14 : deceased together. However, as noted above, the witnesses have not fully supported the case of the prosecution. Therefore, that circumstance is not available to the prosecution. However, the strong circumstance relied upon by the prosecution is recovery of the dead body at the instance of the appellant who was having exclusive knowledge about the dead body which was buried underneath the earth in the Jaraki Bande forest area.
21. In order to prove this aspect, P.W.6 was examined and he has initially not supported the case of the prosecution, except stating that near Jaraki Bande forest area, the Police have got exhumed the dead body and taken his signature to Ex.P-8. But in the course of cross-examination after showing photographs and also playing the DVD before the Court, he has accepted the that the accused No.1 was the person who laid the Police and the Assistant Commissioner and others to : 15 : Jaraki Bande forest area and he has shown the place where the dead body was buried.
22. In support of this, the Assistant Commissioner, P.W.9 was also examined. The said witness has stated that on 27.11.2009, the M.M.Halli Police made a requisition for exhumation of the dead body of the deceased. Accordingly, the accused No.1 took this witness and the Police and other panch witnesses to the said place which is called as Jaraki Bande forest area and he has actually shown the place where the dead body was buried and the mud was excavated on that particular place and the dead body was exhumed. This witness has also witnessed the DVD and also photographs recorded on that particular point of time which also indicate that the accused person was the person who has actually shown the place where the dead body was buried. During the course of cross- examination, it is only suggested that even prior to the : 16 : Police and this witness visiting the spot, they were having knowledge of the said place where actually the dead body was buried. The said suggestion was denied. But no other materials are available during the course of cross-examination of these witnesses including the Investigating Officers as to in what manner, they knew about the burial of the dead body in the forest area. In the absence of hallucination of such facts, it cannot be said that the Police P.Ws.9 and 6 and other panch witnesses had the knowledge of the dead body even much prior to the accused showing the said place. Therefore, the above said strong circumstance, in our opinion has been amply established before this Court.
23. Now question arise whether on the basis of the sole circumstance, the accused can be convicted. There is no hard and fast rule, that on the basis of recovery of the dead body at the instance of the accused, the accused should not be convicted. If the : 17 : material available on record is so strong, credible and trustworthy, in such circumstance, the Court can rely upon such materials on record.
24. Apart from the proof given by the prosecution, the conduct of the accused also has to be examined. Of course, as pointed by the learned SPP that the accused at the time of framing of the charges itself while recording his plea has admitted his guilt, though it can be taken as a confession, but in our opinion that will also play a dominant role with reference to the conduct of the accused. The confession must be unequivocal or if the confession is made before the Court, if that is also corroborated by other materials on record, the Court can rely upon such admission of the accused. The 313 statement of the accused recorded clearly disclosed that the accused has very sensibly answered to all the questions put to him, particularly he has not admitted all the facts which was put to him : 18 : from the evidence of the prosecution witnesses. He has actually given answers to question Nos.3, 4 and 5 in the affirmative, but stated as false to question Nos.6 to 8 are concerned. Again he has given positive answers to question Nos.9, 10 and 11 and also answered in the affirmative. So far as question Nos.11, 13 to 17 and rest of the questions, have been answered either in the negative or stating his ignorance. Question No.25 is with reference to the voluntary statement given by the accused. He has accepted the same that he has given such voluntary statement. He has not given any specific defence as such. The voluntary statement so far as question No.3 is concerned, he has categorically admitted that himself and deceased were residing together, as husband and wife and to question No.9 he has answered that the Police took the accused along with others to Jaraki Bande forest area and removed the dead body of a woman buried in the said place. But he : 19 : has clarified at question No.10 that accused No.2 was not present at that time and he was alone present. He has further admitted at question No.11 that the photographs and videographs are taken at that particular point of time and he has also admitted at question Nos.13 to 17 with reference to the evidence adduced by the prosecution with reference to the Police arresting this man, recording the voluntary statement, taking him to the forest area and he actually showed the place where the dead body of his wife was buried and exhumed the dead body and recovery of the said dead body.
25. Apart from admitting the guilt at the time of recording of the plea, he has also reaffirmed the same factual aspects, when he was being examined under 313 statement. Therefore, the accused was fair enough before the Court to admit his guilt that he actually committed the murder of his wife and he buried the said : 20 : dead body in the forest area within his exclusive knowledge.
26. Therefore, the above said factual circumstance clearly establishes that the accused has admitted his guilt substantially before the Court.
27. Apart from that the prosecution has also proved the case against the accused beyond reasonable doubt. When one strong circumstance which is established beyond reasonable doubt, which is decisive in nature, if the Court accepts the said circumstance without any blemish, without any doubt, if the Court can give a finding unerringly pointing the guilt of the accused, in such an eventuality, there is no bar for the Courts to accept such a strong decisive circumstance to convict the accused.
28. We have carefully examined the entire order sheet of the Trial Court and the evidence adduced by : 21 : the prosecution. We are of the opinion that it is not a stray admission of the accused which is available on record, perhaps the accused has given a specific and consistent instructions to his Advocate not to cross- examine P.W.6 and also at the time of recording of the plea, he has reiterated that he has committed the murder of his wife and at the time of 313 statement also, he consistently ratifed his act that he actually after commission of the murder of his wife buried the dead body underneath the earth in the forest area.
29. We can understand, if the body was found on the earth, anybody can witness the dead body and inform the Police so that to infer that the Police might have had knowledge of the dead body, even prior to the alleged detection from the accused. There is absolutely no such circumstance created during the course of cross-examination of any of the above said witnesses. Therefore, we are of the opinion that the said : 22 : circumstance is strongly established by the prosecution. The order sheet of the Trial Court also disclose that after P.W.6 not being cross-examined, no application was filed for recalling of the said witnesses for cross- examination. Therefore, we are of the opinion on the basis of the instructions of the accused only, the learned counsel might not have cross-examined the above said witness.
30. Under the above said facts and circumstances, we do not find any strong reasons to interfere with the judgment of conviction and sentence passed by the Trial Court.
31. Last but not the least, we are of the opinion, the offence will not fall under Section 304(2) at all. Because there is no elucidation of any facts from any of the witnesses as to whether there was any quarrel between the husband and wife and due to any enragement or due to any heat of passion, the incident : 23 : happened. It is not even the defence taken by the accused during the course of trial. Even in the 313 statement, he never stated or taken that defence. It is not that the accused has answered all the questions in a similar manner in 313 statement, he has selected some of the questions to be answered in the affirmative and selected some of the sentence to be answered in the negative and some of the questions he pleaded with ignorance. Therefore, consciously the accused has answered those questions that indicates that accused virtually has no grievance against the allegations made against him though the Trial Court considering the gravity of the offence alone, the prosecution to prove its case.
32. In our opinion, the entire circumstance looked into prospective, it can be safely said that accused has not only admitted substantial allegations : 24 : made against him, but the prosecution has also proved the case beyond reasonable doubt.
Under the above said circumstances, the appeal is devoid of merits and the same is liable to be dismissed. Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Para 1 to 5 - *Svh/-
Para 6 to e nd - Rs h