Karnataka High Court
State By Pavagada vs Nagaraja on 20 December, 2019
Equivalent citations: AIRONLINE 2019 KAR 2334, 2020 (1) AKR 819
Bench: Ravi Malimath, Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 20TH DAY OF DECEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL APPEAL NO.748 OF 2015
CONNECTED WITH
CRIMINAL APPEAL NO. 866 OF 2014
IN CRIMINAL APPEAL NO.748 OF 2015
BETWEEN:
STATE BY PAVAGADA
POLICE STATION-561202 ... APPELLANT
(BY SRI. V.S. HEGDE, STATE PUBLIC PROSECUTOR-II)
AND:
NAGARAJA
SON OF SAJJAPPA
44 YEARS
RESIDING OF GOWDETI VILLAGE
PAVAGADA TALUK
TUMKURU DISTRICT-561202 ... RESPONDENT
(BY SRI. KARTHIK U.YADAV, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377
OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO MODIFY
THE JUDGMENT AND ORDER DATED 28.08.2014 PASSED IN
S.C.NO.310 of 2012 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MADHUGIRI, INSOFAR AS
THE ORDER OF SENTENCE AND PASS ADEQUATE SENTENCE IN
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ACCORDANCE WITH LAW AND THE RESPONDENT/ACCUSED IS
TO UNDERGO LIFE IMPRISONMENT FOR THE OFFENCE P/U/S
302 OF IPC AND FURTHER THE RESPONDENT/ACCUSED IS
SENTENCED TO UNDERGO 2 YEARS SIMPLE IMPRISONMENT
FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 OF
INDIAN PENAL CODE. BOTH THE ABOVE SENTENCES SHALL
RUN CONCURRENTLY.
*****
IN CRIMINAL APPEAL NO.866 OF 2014:
BETWEEN:
NAGARAJA
SON OF SAJJAPPA
AGED ABOUT 44 YEARS
RESIDING OF GOWDETI VILLAGE
PAVAGADA TALUK
TUMKURU DISTRICT-561202 ... APPELLANT
(BY SRI. KARTHIK U.YADAV, ADVOCATE FOR
SRI. VENKATA REDDY.S.K, ADVOCATE)
AND:
STATE OF KARNATAKA
BY PAVAGADA POLICE
PAVAGADA, TUMKURU DISTRICT-561202 ... RESPONDENT
(BY SRI. V.S. HEGDE, STATE PUBLIC PROSECUTOR -II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
ORDER DATED 28.08.2014 AND SENTENCE DATED 30.08.2014
PASSED BY THE IV ADDITIONAL DISTRICT & SESSIONS JUDGE,
MADHUGIRI, IN S.C.NO.310 of 12 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 302 AND 201 OF INDIAN PENAL CODE.
*****
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THESE CRIMINAL APPEALS COMING ON FOR
HEARING AND HAVING BEEN RESERVED FOR JUDGMENT
ON 27.09.2019 THIS DAY, SURAJ GOVINDARAJ J.,
PRONOUNCED THE FOLLOWING:
JUDGMENT
1. The present appeal arises out of the judgment and sentence dated 28.08.2014 and 30.08.2014 passed in S.C.No.210 of 2012 by the 4th Additional District and Sessions Judge, Madhugiri convicting the accused for offences punishable under Section 302 of IPC to undergo life imprisonment and under Section 201 of IPC to undergo simple imprisonment for two years with both sentences to run concurrently.
2. The case of the prosecution is that Prameela, the younger sister of the complainant-Ramalingappa (PW-1) married the accused about 17 years before the incident which occurred in the year 2012. Out of their wedlock, two daughters and one son were born to them. The accused and the deceased used to 4 quarrel frequently. In the year 2011, the accused had driven out the deceased from his house. At the intervention of Pandurangappa (PW-2), Shivanna (PW-3) and Narayanappa (PW-4), the deceased was sent back to the house of the accused. Despite the advice of the Panchayathdars, the accused failed to stop ill-treating the deceased.
3. On 03.07.2012 at about 10.00 a.m., accused and the deceased had been to Kanivemaramma Temple and returned around 3.00 p.m. At about 7.00 p.m., daughter of the deceased Bharathi (PW-12) had informed the complainant that their parents had gone out to bring firewood and they had not yet returned home.
4. The complainant Ramalingappa (PW-1), his brother Obalesha (PW-6) and other villagers went out in search of the accused and the deceased. At about 8.00 p.m., PW-1 and others found the dead body of Prameela in the land of Subbanna. Since there was 5 no bus facility, the complaint came to be filed on 04.07.2012 at about 7.40 a.m., on suspicion that the accused might have murdered the deceased.
5. The Station House Officer received the complaint and registered a Crime No.106 of 2012 at 7.45 a.m. and submitted FIR at 12.45 p.m. to the jurisdictional Magistrate. The case was handed over to the CPI for further investigation who investigated and arrested the accused and produced him before the Committal Court, which remanded the accused to the judicial custody.
6. The Investigating Officer after completion of investigation filed the charge sheet against the accused for the above offences.
7. After filing the charge sheet, the Committal Court took cognizance under Section 209 of Cr.P.C., and registered the case in C.C.No.368 of 2012 and passed the committal order on 28.09.2012. 6
8. On certain reconstitution, the matter came up before the Fast Track Court. The Presiding Officer of the Fast Track Court framed the charges against the accused for the offences punishable under Sections 302 and 201 of IPC. Accused pleaded not guilty and claimed to be tried.
9. To prove the case of the prosecution, 16 witnesses have been examined by the prosecution as PWs.1 to 16 and marked documents Exhibits P1 to P19 as also material objects M.Os.1 to 13 have been marked. After closure of evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded. The accused denied the statement of the witnesses and has not chosen to lead any evidence on his behalf.
10. The trial Court after trial convicted the accused for the offences punishable under Sections 302 and 201 of IPC and imposed a sentence of life imprisonment for the offence punishable under Section 302 of IPC 7 as also a sentence of two years of simple imprisonment for the offence punishable under Section 201 of IPC.
11. Aggrieved by the same, the accused has filed Criminal Appeal No.866 of 2014 seeking to set aside the judgment of conviction and order of sentence dated 28.08.2014 and 30.08.2014 respectively. Criminal Appeal No.748 of 2015 has been filed by the State seeking for enhancement of sentence.
12. The evidence relied on by the prosecution is as under:-
12.1. PW-1 - Ramalingappa, brother of the deceased, has stated that the deceased is his younger sister and she was married to the accused; they have two daughters and one son; PW-12 - Bharathi is the daughter of the accused. There were frequent quarrels between the deceased and the accused. Accused was beating the 8 deceased. Hence, there was a panchayat held in the presence of Narayanappa, Shivanna (PW-3) and Pandappa.
Subsequent thereto, the deceased was sent back to the house of the accused. After one week of said Panchayath, accused and the deceased went to a fair at Maramma's temple. PW-1, later on, came to know from PW-12 that the accused had taken the deceased to bring firewood. PW-12 informed PW-1 about the accused and deceased not having returned to the house even after 6.00 p.m. PW-1 states that he along with Obalesh (PW-6) and Patanna went in search of the accused and the deceased. They found the body of the deceased near the land of Subbanna. He states that the accused had beaten the deceased and they found a towel around her neck, her ears were bleeding. Since the 9 body was found around 8.00 p.m., he has given complaint to the police on the next day morning. He has identified the complaint as Ex.P1 and his signature as Ex.P1a. He states that the police came to the spot and seized the blood-stained soil from two sides, 2 coins of two rupees and one pair of slipper of the deceased. He states that mahazar was conducted and recorded as per Ex.P2, which has been signed by him. The seized blood-stained soil, two coins and slippers are marked as material objects 1 to 3 respectively. 12.2. In cross-examination, PW-1 has reiterated that the accused used to trouble the deceased. He states that Maramma's temple is about 2-3 kms away from his village. He states that 1 km is the distance between his home and the house of the 10 accused. He states that he saw both the accused and the deceased when they returned from temple at 3 o' clock. He further states that near the body he found two coins and slipper. He states that he was present when the panchayath was conducted and accused and deceased were advised to lead a good life. He denies that the accused and the deceased never quarrelled. He denies that there is no panchayat conducted. He denies that he has given false evidence. He denies that he did not see the body of the deceased at 8.00 p.m. He states that when the body was found, they saw by moonlight a towel rolled around the neck of the deceased. He states that the deceased was beaten with a club. He states that he showed the towel to the police and he does not remember the name of the police personnel. He denies 11 that the accused had never thrashed the deceased. He denies the suggestion that there was enmity between him and the accused. He denies that somebody might have thrashed the deceased and grabbed mangalasutra and ear-rings of the deceased. He denies that he has given a false complaint. He denies that the deceased's character was not good. Nothing worthwhile is elicited in the cross- examination to disbelieve his evidence. 12.3. PW-2 - Pandurangappa in his chief examination has stated that he knew the deceased and PW-1. He states that the deceased had come to her maternal house two years ago because of a quarrel between the accused and the deceased. He states that he along with C.Ws.-3 and 4 conducted the panchayat as regards the dispute 12 between the accused and the deceased. At the request of P.W-1, all of them advised the accused and the deceased to lead their life together in a good manner. He, later on, came to know that the deceased had passed away. But no one informed him about how she died. He states that he did not go and see her dead body. He states that police have not enquired with him and he has not given any statement before the police. In view of the above statement, PW-2 was treated as a hostile witness, and the Public Prosecutor requested for cross- examining him.
12.4. In the cross-examination by the Public Prosecutor, PW-2 denies that he went and saw the dead body of the deceased. He denies that he heard the news that the accused had murdered the deceased. He 13 denies that he had given any statement to the police.
12.5. PW-2 was also cross-examined by counsel for the accused. CW-2 has denied the suggestion that no panchayath had been conducted. He has also denied that the deceased had come to maternal home because she was having a relationship with Kudurappa. Nothing worthwhile is elicited in the cross-examination to disbelieve his statement.
12.6. PW-3 - Shivanna has deposed that himself, deceased, CW-1 and CW-2 are from the same village. One day, when he was passing by CW-1's house, PW-1 called him, he went in and sat in the house. He was informed that the deceased and the accused had quarrelled with each other. Hence, he along with others advised the deceased and 14 the accused to lead a good life. In view of the above statement, PW-3 is treated as hostile and requested for cross- examination.
12.7. During the course of cross-examination by the public prosecutor, PW-3 has stated that he had not gone and seen the dead body of the deceased in Subbarao's land. He denies that he came to know that the accused had murdered the deceased. He denies that he has seen the wounds on the deceased. He denies that he had given a statement to the police. PW-3 was cross-examined by the counsel for the deceased. He denies the suggestion that no panchayath was conducted. He also denies the suggestion that the deceased had an illicit relationship with Kudurappa and hence, she came and was residing in her maternal home. 15 Nothing worthwhile is elicited in the cross- examination to disbelieve his statement. 12.8. PW-4 - Narayanappa, has stated that he knows the accused and the deceased. He has stated that the deceased and the accused quarrelled with each other two years ago. Due to which, she was staying in her maternal home. At the request of PW-1, he along with C.Ws.-3 and 4 conducted panchayath to resolve the dispute between the accused and the deceased. He states that all of them advised the accused and the deceased to lead a good life and send them to their house. He, later on, came to know that the deceased had died. He states that no one had informed him as to how she died. He further states that he did not go and see the dead body. He adds that the police had not 16 enquired with him and not given any statement to the police. In view of the above statement, he was treated as hostile and permission was sought to cross- examine him.
12.9. During the course of cross-examination by the public prosecutor, he denies that he had gone to see the dead body of the deceased. He denies that he knew that the accused killed the deceased. He denies that he saw the neck of the deceased tied with towel and injuries on right ear, face and on the head of the dead body. He denies that he had given statement as per Ex.P5. He denies that he is giving a false statement before the police. Nothing worthwhile is elicited in the cross-examination to disbelieve his statement.
1712.10. PW-5 - Narasimhamurthy, has stated that he and the accused belong to the same village. The accused had gone to his house at 6.30 p.m. in the evening one year six months ago. At that time, he was wearing a lungi and banian. He states that the accused asked him to give him a shirt because he wanted to go to another village. Hence PW-5 gave him a shirt. The shirt was identified by PW-5 as M.O.4. PW-5 states that later he came to know that the accused had murdered his wife. He states that he did not go to see the dead body. He states that he can identify the banian which accused had worn on the day he came to his house, which was marked as M.O.-5. 12.11. During the cross-examination, PW-5 has stated that police had not enquired with him and taken a statement. He denies that the 18 accused had not come to his house at 6.30 p.m. and he had not given him a shirt. He states that the house of the accused is about 1 1/3 km away from his home. He states that there are 5-6 houses surrounding his house. He states that there are 5 to 6 houses are also familiar to the accused. He states that he has not observed anything about the accused when he came to his house. He states that the accused had come to his house only once and thereafter, he never came. He denies the suggestion that the accused had not taken a shirt from him and M.O.4 does not belong to PW-5. He denies that he is giving evidence at the instance of PW-1. Nothing worthwhile is elicited in the cross- examination to disbelieve his statement. 19 12.12. PW-6 - Obalesh states that PW-1 is his brother. The deceased is his younger sister. PW-3 is his elder sister. He states that the deceased was residing in his village after her marriage with the accused. CW-12 - Bharathi is the elder daughter of the accused. He states that in the beginning, accused and the deceased were good to each other. Subsequently, they used to quarrel after they got three children. The deceased had come and stayed in her maternal home stating that the accused used to beat her for no reason. He states that the accused had taken the deceased to Kanivemaramma Temple. After they returned, PW-12 has informed him that the accused and the deceased had gone out to fetch firewood and later, they did not come back even after 6.30 p.m. He states that when himself, CW-1 - Ramalingappa, his 20 elder sister (PW-7) and Pathanna started to search and later, they found the dead body of the deceased besides a small jali tree in the land near the pond. He states that the left ear of the deceased was harmed and bleeding; the towel was tied around the neck. It is seen that body has been dragged about 50 feet. There was a bleeding in her ear. He states that later on he has sent his elder brother to give complaint on the next day morning since there was no bus in the night. He states that accused was suspecting that the deceased had relationship with Kudurappa. Therefore, there was a quarrel between them and he had beaten the deceased with a club.
12.13. During the course of cross-examination, he states that Pavagada is 20-22 kms away 21 from Gowdeti. The place where they found the dead body is 1 km away from his house. He states that it was more than 8 o'clock when they found the dead body. He states that he had gone with his elder brother with torch. At the place of corpse, they found two coins, slipper and one club. He states that he did not see the accused and the deceased going together to fetch firewood. He states that he did not try to call the police at night. He states that the dead body was there until the police arrived in the morning. He denies that he is a giving a false statement listening to the words of PW-1. Nothing worthwhile is elicited in the cross-examination to disbelieve his statement.
12.14. PW-7, Thimmakka, states that the deceased is her sister. She states that the accused is 22 the husband of the deceased and Bharathi-
PW-12 is the daughter. She states that accused and deceased had good relationship. However, accused got
suspicion about the deceased that she had relationship with another. She states that the accused and the deceased called her to accompany them to go to temple. But she could not go since she had other work. She states that accused and the deceased had gone to the temple but she was not there at that time. She states that she came to home in the evening and PW-12 Bharathi informed her that the accused and the deceased had gone out to fetch firewood. Even though it was 7.00 p.m., they did not return. She came to know that somebody had beaten and killed the deceased. Hence, she went and saw the dead body. A towel was tied around the neck of the deceased 23 and her body was dragged for some distance. Two coins, slipper, beedi and match box were found near the dead body. She has stated that she will identify the saree and blouse that the deceased had worn. She has identified the saree as M.O.6 and blouse as M.O.7. During the course of cross-examination, she has stated that police had not taken her statement. She states that the distance between her house and house of the deceased is about 100 meters. She has stated that she has not seen the accused and the deceased going to the temple. She states that the deceased had not told her that the accused was treating her suspiciously. She states that the accused himself had informed her about the deceased character. She states that the deceased had informed her that the accused used to beat her. She denies that the 24 accused and the deceased had not called her to accompany them to go to temple. Nothing worthwhile is elicited in the cross- examination to disbelieve his statement. 12.15. PW-8 - Sakamma, admits that the deceased is the wife of the accused but she does not know how she died. She states that she has not seen the dead body. She further states that she has not given statement to the police and hence, she was treated as hostile. She was cross-examined by Public Prosecutor. She denies that she went and saw the dead body. She further states that she do not know whether the accused took her and killed her. She denies that she has given a statement to the police. Nothing worthwhile is elicited in the cross-examination to disbelieve his statement.
2512.16. Arun Kumar - PW-9 states that he is working as a Village Accountant at Virupasamudra village. Gowdahatti village comes under his jurisdiction. He states that Circle Inspector had called him and Srinivas to the Station on 04.07.2012. The accused was also brought there. The bloodstained clothes, baniyan, shirt and lungi were seized. He states that only lungi and baniyan were bloodstained. He states that the police had taken the accused into custody. He states that after taking permission from the Tahsildar, he was taken to the place of incident where the accused had killed his wife as shown by the accused. He states that mud-stained, two rupees coins, slipper and bangle pieces were found at the place of the incident. He states that the dead body was found near the acacia tree. He states that bangle pieces were 26 marked as M.O.9. He states that club was produced by the accused which was seized in his presence which was marked as M.O.10. He states that the accused had stated that he had used the club to attack the deceased. The State sought permission to cross-examine the witness which was granted. During the course of cross- examination, PW-9 states that shirt which was worn by the accused was also collected and marked as M.O.11. PW-9 was cross- examined by the counsel for the accused. Wherein he has admitted that he is residing in Dommatamari, Pavagada Taluk. He stated that mahazar was carried out for about an hour. The club was 100 meters away from the place of incident. He states that the accused himself brought the shirt and club, which was broken. He states that club was wet and there was no blood stain 27 mark on the club. He states that the accused himself has stated that he had dragged the deceased by using the towel. He denies that he has not gone to the place of the incident. He denies that the club and shirt was not seized. He denies that he has not gone to the mahazar place. He states that the shirt was green in colour and had not stated that it was multi colour. He denies the suggestion that no clothes were seized. Nothing worthwhile is elicited in the cross-examination to disbelieve his statement.
12.17. PW-10, Obanna, states that pachanama of the dead body of the deceased was conducted in his presence in Subbarao's land. The mahazar is at Ex.P10 and he identifies the signature at Ex.P10a. He states that at the time of mahazar, his 28 photograph was taken and the same was marked as Ex.P11. During the course of cross-examination, he states that the mahazar had already been drawn by the time he was present at the spot. He does not know what has been written in the mahazar. He states that he has signed the mahazar at the place as told by the police. He does not know anything about the matter. Nothing worthwhile is elicited in the cross-examination to disbelieve his statement.
12.18. PW-11, G.Ramappa, has stated that the panchanama of the dead body of the deceased was conducted in his presence in G.K.Subbarao's land. He identifies the mahazar at Ex.P10. He states that his photograph was taken to record his presence which is at Ex.P11. During the 29 course of cross-examination, he states that he does not know what was written in the mahazar. He states that he put his signature at the place where he was asked to. He denies the suggestion that he did not go to the place of incident. He also denies the suggestion that he did not sign. He further denies that he has given false statement. Nothing worthwhile is elicited in the cross-examination to disbelieve his statement.
12.19. PW-12, Bharathi, states that deceased is her mother and accused is her father. She states that accused used to physically abuse her mother in the name of false illicit relationship. During the time of said quarrel, she used to tell them not to speak such things. She states that the accused after drinking alcohol, used to hit her also. 30 Later deceased went to maternal house but the accused used to bring her back by saying that he will look after her properly. But he used to continue the physical abuse. On 03.07.2011, the accused and the deceased had gone to a temple. On their return at about 4 o'clock, deceased and the accused went to bring firewood. Even after 7.00 p.m., when the deceased and the accused did not return, PW-12 informed Ramalingappa (PW-1), Obalesh (PW-6), Pathanna and others, who later on, went in search of the deceased and accused to the place where they went to bring firewood and they found the dead body. She states that the body had been dragged with the towel and coins, slipper, bangle pieces were scattered on the ground. She identifies that the bangle pieces, coins, slipper, blouse as also the saree were of the deceased which 31 were marked as M.Os.1 to 4, 6 and 7 respectively.
12.20. During the course of cross-examination, she has stated that she was born on 16.02.1996. Her father smokes beedi. From about six months prior to the incident, accused used to drink and physically abuse the deceased. He used to quarrel and abuse her atleast twice a day. She states that the deceased and the accused went to get firewood at 4 o'clock and they did not take anything with them. She has further stated that when they went in search of them at 7.30 p.m., she saw the dead body of the deceased. She understood that the accused had used a club to attack the deceased to commit the crime. She states that she does not know the colour of bangles and how many bangles were worn 32 by the deceased. She denies the suggestion that she, deceased and her sibling were not living in the house of the accused. She denies the suggestion that the accused did not take the deceased to get firewood. She states that the deceased had worn mangal sutra, earrings and toe rings and further, there were gold articles in mangalasutra. She denies the suggestion that someone might have killed the deceased to take the gold articles. She denies the suggestion that somebody from Andhrapradesh like naxalites or dacoities might have committed the crime. She denies that she has deposed falsely to take revenge on her father. She denies that she is lying at the instance of her maternal uncle-PW-1.
3312.21. Except casting innuendoes and making some suggestions there is nothing worthwhile is elicited in the cross- examination to disbelieve his statement. The deposition that the deceased and the accused were last seen together and that they had left to go to the place where the deceased's body was found has remained uncontroverted.
12.22. PW-13 - Venkata Bhaskarareddy, states that he is an Assistant Engineer in Pavagada for the past 10 years. He states that he was requested to prepare/draw a map of the spot where the incident took place. He states that the map which he drawn was marked as Ex.P12.
12.23. During the course of cross-examination, he states that owner of the land was not present where the incident took place. He 34 made a rough sketch and later prepared final copy in his office. He denies that he has not gone to spot. He denies that the suggestion that he has not prepared the map. He denies the suggestion that he has prepared a false map. Nothing worthwhile is elicited in the cross-examination to disbelieve his statement.
12.24. PW-14, Venkatareddy, states that he does not know what mahazar has been drawn. He identifies the mahazar as Ex.P13 and his signature as Ex.P13a. He states that he does not know what items were seized while doing mahazar. He has been treated as hostile.
12.25. He was cross-examined by Public Prosecutor. He states that the police wrote the mahazar-Ex.P13 at the station. He 35 denies that he has seen the clothes of the deceased.
12.26. PW-15, M.V.Sheshadri, states that he is the Circle Inspector of Police in Pavagada from April 2010 to September 2010. He has taken charge from Sub-Inspector of Police - Narayana for further investigation in the matter. He states that Narayanaswamy, PSI has arrested the accused and produced him. He has recorded his statement. He has stated that he has seized the shirt of the accused in the presence of panchas and prepared the mahazar at Ex.P7 and marked M.Os.4, 5 and 8. He states that the accused had shown the club which was used to kill the deceased, as also the blood- stained shirt worn by the accused at that time. He states that the accused took him and panchas to the place where the incident 36 took place and a spot mahazar was done. Bloodstained slippers were seized. Bloodstained soil was taken as a sample. Mahazar of the spot was recorded as per Ex.P2. He has seized the slipper and coins which were marked as M.Os.1 to 3. He states that the accused had produced the blood-stained shirt and club; he states that body of the deceased was examined at the spot and he has taken a statement from Bharati (PW-12), Patanna, Tippanna and Ugrappa and sent the body for medical examination. He states that he produced the accused before the Court on the same day. He further states that after examining the body, doctor sent the clothes which had been seized through mahazar and marked as Ex.P13. He has taken the statement of Narasimhamurthy (PW-5) and Obalesh (PW-
6) on the same day. He has enquired with 37 Thimmakka (PW-7), Anjanamma and Sakamma (PW-8) and taken their statements on 09.07.2012. He has collected the pahani of the spot where the crime took place from the Village Accountant and collected the map prepared by the Engineer, collected the post-mortem report. He has recorded the statements of the Savithramma, Pandurangappa, Shivanna (PW-3) and Narayanappa. He has prepared and filed the charge sheet before the Court after having obtained report from Forensic Science Laboratory. He produced the FSL report before the Court which was marked as Ex.P17.
12.27. PW-15 in cross-examination states that he has instructed his staff to find out the accused. He states that no one had given a photograph of the accused at the time of 38 filing of the complaint. That there is 20 kms distance from Pavagada to Venkatamannahalli. He denies that it takes 45 minutes to reach Venkatamannahalli from Pavagada. He denies that he had ordered to catch the accused at 8.00 a.m. he also denies that it was not possible to catch the accused at 8.30 a.m. and produce him at 9.00 a.m. He states that since the villagers did not co-operate with him, he took the assistance of Village Accountant. He denies the suggestion that the shirt was light yellow colour. He states that shirt was a checks shirt. He denies the suggestion that lungi which was taken into custody was not having checks design. He denies the suggestion that there was no dead body at the place of the incident. He states that clothes of the deceased were sent in a sealed cover. After mahazar, the clothes 39 were again sealed. He states that the towel was bloodstained and the same was mentioned in the mahazar. He denies the suggestion that certain portions have been added subsequently for the convenience of the case. He denies that any corrections have been made in the document. He states that he has verified whether the deceased was raped or not before the murder and on verification, he states that she was not raped. The wounds on the body were on account of the body being dragged for nearly 100 meters. He denies that there was no earrings in the ear of the deceased. He denies that she could have been killed by a robber to rob the jewellery. He denies that the charge sheet has been filed creating a false case since the real culprit was not found.
4012.28. The learned Public Prosecutor sought for permission to reexamine the witness which was granted. He states that the dead body of the deceased was sent for post mortem without removing the towel which was on the neck. After post mortem, the towel was marked as M.O.13.
12.29. The counsel for the accused sought permission to cross-examine the witness which was granted. In cross-examination, the witness has denied that even though there is no entry about towel in inquest mahazar, the same has been subsequently added for amending the mahazar.
12.30. PW-16, Dr.Mahesh, states that he is a medical officer from 2009-2014 at Pavagada General Hospital and he has conducted post mortem of the deceased between 4.30 to 6.30 p.m. on 04.07.2012. He found split 41 lacerated wound about 3 cm x 1.5 cm over the left mastoid area and a split lacerated wound 2 cm x 1 cm over the right temporal area, abrasion below the lower lip, contusion over right frontal area about 3 cm x 1 cm in size, ligature mark was present just below the thyroid cartilage about 2 cm width with base being pale and margins congested. He further states that there is bruising of the neck, muscle and marks were present below both mastoid region. He opines that the death is due to asphyxia as a result of strangulation.
12.31. In cross-examination, he admits that the police had noted the wounds found on the dead body in the spot inspection report before sending the dead body for post mortem. He states that the post mortem was conducted after reading the said 42 mahazar. However, he states that the police have not written the wounds on the dead body accurately. He states that he has written the measurement of the wounds found on the dead body accurately. He states that there is a difference in the measurement mentioned in the post mortem and inquest mahazar. He further states that what he has mentioned in the post mortem report is correct since he has accurately measured it. He states that mark on the neck measured 15 inches long and 4 to 5 inches width and the same would have been caused due to holding the towel around the neck tightly. He denies the suggestion that there was a possibility of suffocation. Nothing worthwhile is elicited in the cross-examination to disbelieve his statement.
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13. The prosecution has relied on circumstantial evidence in terms of the last seen theory. The accused and the deceased were last seen together by Bharathi (PW-12), daughter of the accused and the deceased. The only witness is Bharathi-PW-12. The other witnesses have deposed on the basis of what Bharathi had told them. After considering the evidence, the trial Court has convicted the accused.
14. Aggrieved by the same, the accused had filed the present appeal in Criminal Appeal No.866 of 2014 contending that the entire judgment is passed based on circumstantial evidence and is liable to be set aside. He contends that when the dead body was seized, ornaments of the deceased viz., tali with golden articles, ear-rings, toe rings were not found or seized during the mahazar. Hence, he contends that someone might have murdered his wife for gain and taken away the ornaments. He states that the fights between the accused and the deceased can 44 not in any manner lead to a conclusion that the accused has committed murder of the deceased. The accused admits that he and deceased had gone out at 4.00 p.m. to fetch firewood. He has not stated anything as regards his going to PW-5's house and borrowing his shirt.
15. The State has also filed an appeal in Criminal Appeal No.748 of 2015 contending that the sentence passed is inadequate and has sought for enhancement of the sentence by also imposing fine on the accused.
16. We have heard Sri.Karthik Yadav, learned counsel for Sri.Venkata Reddy, for the appellant in Criminal Appeal No.866 of 2014 and Sri.V.S.Hegde, SPP-II for the respondent in Criminal Appeal No.866 of 2014 and appellant in Criminal Appeal No.748 of 2015.
17. The accused has admitted the frequent fights between the accused and the deceased. He has admitted that the relationship between the accused 45 and the deceased was strained. He has admitted that they had gone to a temple and came back at 4.00 p.m. and he and the deceased went out to fetch firewood. He does not offer any explanation as to what happened when they went to fetch firewood. The interaction between them, where he left the deceased; where did he go and when did he part the company of the deceased is not forthcoming. The evidence discloses that he smokes beedis, the spot mahazar indicates that there were a number of smoked beedis found at the spot. He has given no explanation nor controverted the statement made by PW-5 as regards the accused having visited the house of PW-5 in order to borrow a shirt from him.
18. The theory put forth in cross-examination as also put forth in the present appeal is that someone might have killed the deceased and taken away the gold ornaments belonging to the deceased, thereby 46 contending that the murder was for gain and he has nothing to do with it.
19. We do not find any force in these contentions of the accused. The accused has admitted that there were frequent quarrels with the deceased; the accused has admitted that he was manhandling the deceased; the daughter having deposed that he was given to fits of anger and manhandling the deceased also, the accused and the deceased left together to go and get firewood and later on, the dead body of the deceased was found and the accused was missing. More so, the accused has not given any explanation with regard to parting the company of the deceased.
20. Sri.KarthikYadav, learned Counsel for the appellant/accused has placed reliance on para 10 of the decision of the Hon'ble Supreme Court in GANPAT SINGH VS. STATE OF MADHYA 47 PRADESH reported in (2017) 16 SCC 353 It is reproduced hereunder:
"10. Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows :
"The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."48
21. Relying on the above decision Sri.Karthik Yadav, learned counsel contends that to apply the last seen theory, there should not be a lapse of time between the point when the accused and the deceased were seen together and when the deceased was found dead. In the instant case, the accused and the deceased were last seen together at 4.00 p.m. and the body of the deceased was found at 8.00 p.m. Hence, the last seen principle will not be applicable.
22. We have perused the above decision. We are unable to agree with Mr. Yadav, that would be the case if the accused is able to establish that after having left the deceased at 4.00 p.m., he went somewhere else and he parted the company of the deceased when she was alive. In the present case, the circumstances are heavily against the accused. It is stated that men will lie but circumstances do not. 49
23. The accused and the deceased left at 4.00 p.m. to fetch firewood. The accused is said to have gone to the house of PW-5 without a shirt and requested for a shirt from PW-5. The shirt and towel of the accused was found at the spot where the body of the deceased was lying.
24. The accused and the deceased were last seen by CW-12 i.e., the daughter who has categorically deposed that both the accused and the deceased had gone together to fetch firewood. Subsequent to that, no one has seen the accused or the deceased either together or separately. There are no intervening circumstances between the time that CW-12 saw the accused and the deceased together up to the time that the deceased's body was found which would establish anything to the contrary. The last seen theory is applicable there being no intervening circumstances because there is a motive on account of frequent quarrel with the deceased. 50
25. From the evidence on record, it is seen that all the witnesses have consistently deposed that there was constant domestic strife and quarrels between the accused and the deceased. In fact, it is on account of these quarrels that the deceased had left the matrimonial home and was residing with her brother until recently before her death.
26. PW-1, PW-2, PW-3, PW-4, PW-6, PW-7 and PW-12 have categorically stated that there were frequent quarrels between the accused and deceased. The accused used to frequently physically assault the deceased, the accused suspected the fidelity of the deceased and thereby torment the deceased. The conditions of the marriage of the accused and the deceased and their relationship was very much on a decline and it is only recently that at the instance of well-wishers of the family, the deceased had moved back into her matrimonial home.
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27. Though PW-12 has stated that the accused and the deceased had gone to fetch firewood, she has also stated in cross-examination that they did not take anything with them. It is but required that when anyone would go to fetch firewood, they would take necessary equipments like an axe, club, etc. Without the same, it would be difficult to cut the wood to be used as firewood. The mahazar of the location where the murder was committed does not indicate that firewood was collected by the accused and the deceased. Thus, the reason given to go and fetch firewood is also ill-founded, the accused therefore used the ruse of getting firewood, to lure the deceased to a secluded spot and murder her.
28. The evidence on record establishes that there is a motive for the accused to commit the murder of the deceased. The constant fights between the accused and the deceased due to which the deceased had been forced to leave the company of the accused, 52 the suspicion on the part of the accused that the deceased was having an affair as also the well- wishers of the family forcing the accused and the deceased to live together had given the accused a motive to do away with the deceased.
29. The material objects collected viz., the towel (M.O.-
13) which is used to strangle the deceased has been established to belong to the accused. The blood- stained baniyan (M.O.-5), lungi (M.O.-8) and blood- stained shirt (M.O.-11) are also established to belong to the accused. There is no reason forthcoming from the accused as to why and how they got blood- stained. The lack of explanation by the accused as also the circumstances of the incident would again establish that the accused was involved in the incident.
30. PW-5 has stated that the accused had come to his house at 6.30 p.m., and borrowed his shirt. This would establish that the accused did not have his 53 shirt at that time or that he had lost his shirt. The shirt of the accused was at the site of the incident which came to be recovered subsequently in a blood stained condition. The accused borrowed a shirt from PW-5 to cover himself. It is also of relevance to note that the accused was nowhere to be found until his arrest on 04.07.2012. The fact of the death of the deceased was known to all. The accused did not come forward at that time. In fact, the whereabouts of the accused were not known to the family members until his arrest. This also gives rise to an inference that the accused was involved in the murder and therefore was hiding himself.
31. On account of his threats that he had held out to the deceased, the above circumstances which have been estalibhshed through the testimony of various witnesses lead to one inescapable conclusion that the accused is guilty of the offence. The trial court has gone through all the evidence on record in a proper 54 manner, appreciated the same in the required manner. The conclusion arrived at by the trial court is proper. Hence, the finding of the trial court cannot be interfered with.
32. As regards the imposition of fine sought for by the prosecution/State in Criminal Appeal No.748 of 2015 is concerned, having regard to the fact that criminal justice system is not only to punish the guilty and deter such crimes from happening, Criminal Justice System is also required to be geared to compensate the victim of the crime and restitute the victim in any manner possible.
33. It would therefore be in the interest of compensating the victim to direct the accused to pay a fine of Rs.50,000/- within a period of two months of this judgment. Said amount shall be deposited with the trial court, which shall after expiry of the time period for appeal from this judgment be disbursed to Bharathi (PW-12), daughter of the deceased and the 55 accused who shall receive the same on behalf of her two siblings and distribute the amount equally amongst themselves. In the event of the accused not making payment of the above fine accused shall undergo simple imprisonment for a further period of three years.
34. State is also required to be directed to consider grant of compensation to PW-12 and her two siblings in terms of the Karnataka Victim Compensation Scheme, 2011 and in terms of Section 357 of Cr.P.C., which shall be determined by the jurisdictional District Legal Services Authority and make payment of the compensation to CW-1 within a period of eight weeks from the date of receipt of the certified copy of this order.
35. In view of the above, we pass the following: 56
ORDER i. Criminal Appeal No.866 of 2014 filed by the accused is dismissed.
ii. Criminal Appeal No.748 of 2015 filed by the State is allowed in part.
iii. The sentence of imprisonment as imposed by the trial Court is sustained. However, the accused is directed to pay a fine of Rs.50,000/- within a period of three months from today which shall be deposited before the trial Court. The said amount shall be equally distributed between CW-12 and her two siblings. In default of paying the fine, the accused shall undergo simple imprisonment for a further period of three years.
iv. State is directed to consider grant of compensation to PW-12 and her two siblings in terms of the Karnataka Victim Compensation Scheme, 2011 and in terms of Section 357 of Cr.P.C., which shall be determined by the jurisdictional District Legal Services Authority and 57 make payment of the compensation to CW-12 and her two siblings within a period of three months from the date of receipt of the certified copy of this order.
Registry is directed to forward a copy of this order to the jurisdictional District Legal Services Authority, forthwith.
Sd/-
JUDGE Sd/-
JUDGE Prs*