Karnataka High Court
Sundra @ Sundar vs State Of Karnataka on 26 November, 2020
Bench: B.Veerappa, K.Natarajan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.360/2016
BETWEEN:
SUNDRA @ SUNDAR
S/O MALLEGOWDA @ PASE HETTAJJA,
AGED ABOUT 26 YEARS,
R/AT THIMMANA HOSALLI VILLAGE,
H.D.KOTE TALUK, MYSORE DISTRICT,
PIN CODE-571114.
...APPELLANT
(BY SRI R. V. ANAND, ADVOCATE)
AND:
STATE OF KARNATAKA
BY CIRCLE INSPECTOR,
BEECHANAHALLI POLICE STATION,
H.D.KOTE TALUK, MYSORE DISTRICT,
PIN CODE-571114.
REP.BY. STATE PUBLIC PROSECUTOR,
ATTACHED TO HIGH COURT BUILDING,
BANGALORE-560001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT DATED 12.01.2016 PASSED BY THE II
ADDITIONAL SESSIONS JUDGE, MYSORE IN S.C. No.240/2013 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 498(A) AND 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The accused No.1 filed the present Criminal Appeal against the judgment and order of conviction dated 12.01.2016 made in S.C.No.240/2013 on the file of the II Additional Sessions Judge, Mysuru, sentencing the accused No.1 to undergo imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code and simple imprisonment for a period of two years for the offence punishable under Section 498A of the Indian Penal Code, and to pay fine of Rs.1,000/-, in default of payment of fine, to undergo simple imprisonment for a period of 15 days.
2. It is the case of the prosecution that the criminal law was sent into motion on the first information given by P.W.1 on 3 06.05.2013 at about 10.30 AM. Accused No.1 is the elder brother of accused No.2. The first informant Appanni-P.W.1 is the father of the deceased Sarojini-wife of accused No.1. On 01.04.2008, the deceased Sarojini was married to accused No.1. After the marriage, Sarojini commenced her matrimonial life in the house of the accused No.1 at Thimmana Hosalli village in which accused No.2 and their parents also resided. After about 3 to 4 years of marriage, accused No.1 and the deceased started residing together in a separate house adjacent to the said house. The accused No.2 who is brother of accused No.1 and brother-in-law of the deceased had veiled looks towards the deceased and had mis-behaved with sexual intent, when nobody were there in the house. When deceased brought these acts of accused No.2 to the notice of her husband-accused No.1, he disbelieved her stating that she is making false allegations against his brother and started assaulting her. The accused No.2 is often said to have joined accused No.1 in assaulting the deceased. The deceased had not been to the engagement ceremony of accused No.2. This attitude of the deceased enraged the accused No.1. On 05.05.2013, at about 9.00 4 am, the accused having picked up quarrel with the deceased, assaulted her with club on her head and over the body and killed her. Thereafter, in order to screen themselves from the offence and to destruct the evidence, hanged her body to give impression that the deceased committed suicide.
3. After committal of the case to the Sessions Court, Charge was framed, it was read over and explained to the accused, who pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution examined P.Ws.1 to 30 and marked the documents Exs.P.1 to 40 and material objects, M.Os.1 to 5. The written statement of C.W.4 and signature of P.W.4 was marked as Ex.C.1. After completion of the evidence of prosecution witnesses, the learned Sessions Judge recorded the statement of the accused persons as contemplated under Section 313 of the Code of Criminal Procedure. Both the accused denied the incriminating evidence adduced against them by the prosecution witnesses.
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5. Based on the material on record, the learned Sessions Judge formulated four points for consideration. Considering the entire oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution has proved beyond reasonable doubt that the death of the deceased/Sarojini is homicidal and the accused No.1, murdered Sarojini and thereby committed the offence punishable under Section 302 of the Indian Penal Code; the accused Nos.1 and 2 in furtherance of their common intention, subjected the deceased to cruelty and thereby committed an offence punishable under Section 498A r/w 34 of the Indian Penal Code; and that the prosecution failed to prove that the accused Nos.1 and 2 in furtherance of their common intention caused evidence of commission of offence of murder of Sarojini to disappear and thereby committed an offence punishable under Section 201 r/w 34 of the Indian Penal Code. Accordingly, the learned Sessions Judge, by the impugned judgment and order of conviction, sentenced the accused No.1 to undergo imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code, acquitted the accused No.2 for the offence punishable 6 under Section 302 of the Indian Penal Code; sentenced the accused No.1 to undergo simple imprisonment for a period of two years for the offence punishable under Section 498A of the Indian Penal Code, sentenced the accused No.2 for a period of imprisonment already undergone by him for the offence punishable under Section 498A of the Indian Penal Code, and acquitted both accused Nos.1 and 2 for the offence punishable under Section 201 of the Indian Penal Code; with fine of Rs.1,000/- each, in default, both to undergo simple imprisonment for a period of 15 days. Hence, the present Criminal Appeal is filed by the accused No.1 only insofar as convicting him for the offence punishable under Section 302 and 498A of the Indian Penal Code.
6. The State Government has not filed any Appeal, either against non imposition of fine to the accused No.1 for the offence punishable under Section 302 of the Indian Penal Code, or acquittal of accused No.2 for the offence punishable under Section 302 of the Indian Penal Code and acquitting accused Nos.1 and 2 for the offence punishable under Section 201 r/w 34 of the Indian Penal Code.
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7. We have heard the learned counsel for the parties.
8. Sri R.V.Anand, learned counsel for the accused No.1/ appellant contended that the impugned judgment and order of conviction passed by the learned Sessions Judge is erroneous and contrary to the material on record, cannot be sustained and liable to be sustained. The learned Sessions Judge erred in not considering the evidence of P.W.1-complainant, father of the deceased Sarojini who partly supported the case of the prosecution. In the examination-in-chief, he has deposed that the deceased and accused No.1 were living cordially and accused No.1 has not harassed the deceased. The evidence of P.W.2 -Kalajjegowda who is the circumstantial evidence, residing adjacent to the house of the accused has deposed that both the accused No.1 and the deceased were living cordially. P.W.3-Annaiah, witness to spot mahazar- Ex.P.2 has not supported the prosecution case. Both P.Ws.2 and 3 have turned hostile. P.W.4-Swamy, P.W.5-Nagaraju who are said to be residing in the village of the accused and witnesses to the spot mahazar-Ex.P.2 have also turned hostile. P.Ws.6 and 7 who 8 are witnesses to the Ex.P.4-seizure mahazar and recovery of wooden club-M.O.2 also turned hostile. P.Ws.8 to 10-witnesses to the seizure mahazar-Ex.P.12 also turned hostile. The said material aspect has not been considered the learned Sessions Judge. Learned counsel further contended that the learned Sessions Judge erroneously accepted the evidence of P.W.13-Puspa, elder sister of the deceased, though she has not supported the case of the prosecution and deposed that the deceased and accused No.1 were living cordially and there was no harassment meted out to the deceased by the accused. After she was treated hostile, in the cross-examination, it is elicited that the parents of the deceased and the accused have compromised the case. P.Ws.14 and 15 are the neighbours of the accused No.1. P.Ws.18 to 26 are circumstantial witnesses and have turned hostile.
9. Learned counsel for the appellant further contended that when common charge was framed against accused Nos.1 and 2, the prosecution failed to prove beyond reasonable doubt the offences alleged against the accused No.2 and accordingly, he was acquitted of the offences punishable under Sections 302 and 201 of the 9 Indian Penal Code. The learned Sessions Judge ought to have acquitted the accused No.1 also. Admittedly, the State has not filed any appeal against the acquittal of accused No.2 for the offences punishable under Sections 302 and 201 of the Indian Penal Code. Therefore, learned counsel for the appellant submitted that the entire case of the prosecution has not been proved with reference to the oral and documentary evidence on record, and therefore, sought to allow the Criminal Appeal.
10. Per contra, Sri Vijaykumar Majage, learned Additional State Public Prosecutor, sought to justify the impugned judgment and order of conviction passed by the learned Sessions Judge against the accused No.1 and contended that it is not in dispute that the accused No.1 was living with the deceased in a separate house. On the date of the incident, though accused No.1 has stated that he came to the spot at 12.00 pm, has not taken any steps to lodge complaint in the police station reporting the murder of his wife. But he was absconding and on 07.05.2013 was arrested in Perakaluru village, Kerala State, by P.Ws.25 and 27 and was produced before the CPI, H.D.Kote, at 9.00 am on the same day. The conduct of the 10 accused No.1 makes him disentitled to any relief. The accused No.1 has taken the plea of alibi. Once the plea of alibi is taken, it is for him to prove that he was not present at place of the incident at the relevant time and date. Admittedly, the same has not been proved. While answering to the questions showing incriminating evidence against him, the accused No.1 has given untrue answers. Therefore, adverse inference has to be drawn against the accused. Though the mahazar witness for recovery of M.O.2 has turned hostile, the fact remains that the death of Sarojini is homicidal, in view of the evidence of P.W.29 regarding recovery of M.O.2. Therefore, learned Additional SPP sought to dismiss the Criminal Appeal. In support of his contentions, learned Addl. SPP sought to rely on the dictum of the Hon'ble Supreme Court in the case of Jayantilal Verma vs. State of M.P. (Now Chhattisgarh) made in Crl.A.No.590/2015 dated 19.11.2020.
11. In view of the aforesaid contentions urged by the learned counsel for the parties, the points that arise for our consideration are:
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"(i) Whether the accused No.1/appellant has made out any case to interfere with the impugned judgment and order of conviction sentencing the accused No.1 to undergo imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code?.
(ii) Whether the accused No.1/appellant has made out a case to interfere with the impugned judgment and order of conviction sentencing the accused No.1 to undergo simple imprisonment for a period of 2 years for the offence punishable under Section 498A of the Indian Penal Code, in the facts and circumstances of the case?"
12. In order to re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses.
(i) P.W.1-Appanni/complainant and father of the deceased reiterated the averments made in the complaint and partly supported the case of the prosecution. Ex.P.1 is the complaint, Ex.P.2 is the spot mahazar, Ex.P.4 is the recovery mahazar. He admitted the injuries on the body of the deceased.
(ii) P.W.2-Kalajjegowda, resident of the village where deceased Sarojini was living with her husband and witness to Ex.P.2-spot mahazar, turned hostile.12
(iii) P.W.3-Annaiah, witness to Ex.P.2-spot mahazar turned hostile.
(iv) P.W.4-Swamy, resident of the accused's village acted as panch witness to seizure mahazars-Ex.P.4 and Ex.P.10 has stated in the examination-in-chief that the deceased and accused were in cordial terms, and turned hostile.
(v) P.W.5-Nagaraju, resident of the accused's village and panch witness to the seizure mahazar -Ex.P.10 has stated that the accused No.1 and deceased were living cordially, and turned hostile.
(vi) P.Ws.6-Nanjunda, P.W.7-Basavaraju, witnesses to Ex.P.2-seizure mahazar, recovery of club from the bushes, turned hostile.
(vii) P.W.8-Devarsegowda, P.W.9-Purushottama, P.W.10-Javaregowda who acted as witness to Ex.P.3 turned hostile.
(viii) P.W.11-Swamygowda, P.W.12-Javara, witnesses to Ex.P.4-seizure mahazar and Ex.P.5-photos, turned hostile.
(ix) P.W.13-Puspa has deposed that the accused No.1 and deceased were living cordially. In the cross-13
examination, she has deposed that the matter was compromised, and turned hostile.
(x) P.W.14-Puttamma, P.W.15-Rajeswari, residents of the accused's village have deposed that they went to place of the incident and saw the dead body of the deceased. They have stated that the accused No.1 and the deceased were living cordially, and turned hostile.
(xi) P.W.16-Jayamma, wife of P.W.1 and mother of the deceased have turned hostile.
(xii) P.W.17-Venkategowda, uncle of the deceased has deposed that accused No.1 and the deceased were living happily and turned hostile.
(xiii) P.W.18-Chinnamma, an eye witness to the incident, denied the suggestion that she saw accused Nos.1 and 2 assaulting the deceased on 05.05.2013, and turned hostile.
(xiv) P.W.19-Shivaraju, P.W.20-Devesegowda, P.W.21- Venkategowda, residing in the house adjoining the house of the accused No.1, denied the suggestion that they saw accused Nos.1 and 2 assaulting the deceased on 05.05.2013, and turned hostile.
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(xv) P.W.22-Dr.Prajwalkumar, who conducted post mortem on 06.05.2013 identified multiple injuries on the body of the deceased and issued Ex.P.23 and supported the case of the prosecution.
(xvi) P.W.23-Krishna, Tahsildar who prepared the Inquest Report -Ex.P.13 support the prosecution case. (xvii) P.W.24-Maliyappa, Police Constable who handed over the FIR to the Magistrate, supported the prosecution case.
(xviii) P.W.25-Sureshkumar, has stated that he has worked as Police Constable between 28.06.2010 and 21.05.2014 in Beechanahalli police station and on 07.05.2013 arrested the accused No.1, and supported the prosecution case.
(xix) P.W.26-Mahesha, cousin of P.W.1 turned hostile. (xx) P.W.27-Chethan, PSI, Nanjanagudu, who received the complaint and FIR and participated in the arrest of the accused supported the prosecution case.
(xxi) P.W.28-Ningaraju, Police Constable, who was present during inquest, recovery of dead body and 15 clothes of the deceased, supported the prosecution case.
(xxii) P.W.29-Govindaraju, Police Inspector, filed final report, after investigation and supported the prosecution case.
(xxiii) P.W.30-Devesegowda, who was suffering from paralysis stroke was unable to give evidence.
13. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge, proceeded to pass the impugned judgment and order of conviction.
14. On meticulous reading of both oral and documentary evidence on record, it is undisputed fact that the marriage of the accused No.1 and the deceased-Sarojini was performed on 01.04.2008 and out of the wedlock, two children were born. Admittedly, the accused No.1 and deceased were residing together at Thimmanahosalli village. It is alleged that the accused No.2, brother of the accused No.1 had veiled looks towards the deceased and used to misbehave with her with sexual intent when nobody were there in the house. When the said behaviour of the accused 16 No.2 was brought to the notice of the accused No.1, he disbelieved the deceased stating that she is making false allegations and since she did not attend the engagement of the accused No.2 started assaulting the deceased. On 05.05.2013, at about 9.00 am, the accused Nos.1 and 2 picked up quarrel with the deceased, assaulted her with wooden club on the head and body and killed her. In order to screen themselves from the offence and to destruct the evidence, the accused Nos.1 and 2 hanged the dead body to give an impression that the deceased committed suicide. The learned Sessions Judge, considering the entire material on record, passed the impugned judgment and order of conviction.
15. In view of the aforesaid circumstances, this Court has to consider as to whether the prosecution proved the homicidal death of the deceased and involvement of accused No.1. Based on the evidence of P.W.13-sister of the deceased who deposed that she saw injuries on the body of the deceased, and the evidence of P.W.22-Dr.Prajwal Kumar that the injuries are ante mortem in nature and issued the postmortem report as per Ex.P.23 which depicts multiple injuries on the body of the deceased, the learned 17 Sessions Judge came to the conclusion that the prosecution proved beyond reasonable doubt that the death is homicidal. Further, the learned Sessions Judge recorded a finding that the prosecution has proved the involvement of accused No.1 in the homicidal death of the deceased and has not proved the involvement of accused No.2. P.W.1 father of the deceased partly supported the case of the prosecution. P.Ws.13-sister, P.W.16-mother and P.W.17- uncle of the deceased; P.Ws.6 and 7-witnesses to the recovery of wooden club-M.O.2 used in the offence; P.Ws.8 to 10 witnesses to Ex.P.13- inquest report; P.Ws.3 to 5-witnesses to Ex.P.2-spot mahazar; P.Ws.14 and 15-neighbours of the accused No.1 and P.Ws.18 to 21- circumstantial witnesses, turned hostile and not supported the case of the prosecution. P.W.13-sister of the deceased deposed that the matter was compromised. The learned Sessions Judge did not take into consideration the evidence of P.W.30 who had suffered paralysis.
16. In view of the above, the entire case of the prosecution is based on circumstantial evidence. In order to bring home the guilt of accused No.1, the following circumstances have to be taken into 18 consideration to come to the conclusion that the death is homicidal in nature.
(i) The accused No.1 living with the deceased in a separate house.
(ii) Unnatural conduct of the accused No.1 in absconding.
(iii) False plea of alibi.
(iv) Untrue answers given by accused No.1 in his statement recorded under Section 313 of the Code of Criminal Procedure.
17. A careful reading of the evidence of P.Ws.1, 2, 4, 5, 14 to 18 depicts that since about an year prior to the incident, the accused No.1 and the deceased were residing together in a separate house. The said fact is undisputed. It is also undisputed fact that on the date of the alleged incident, both accused No.1 and the deceased were residing together. In view of the provisions of Section 106 of the Indian Evidence Act, the initial burden is on the accused No.1 to state as to how his wife died in the house. Absolutely there is no whisper about the presence of children of the deceased and accused No.1 at the scene of the incident. As per the complaint averments and the evidence of prosecution witnesses, the deceased and 19 accused No.1 are having two children aged 3 years and 2 years respectively. The children have not been examined.
18. It is also not in dispute that, based on the circumstantial evidence where no eye witnesses account is available, it must be kept in mind that, when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. Admittedly, in the present case, while answering the questions put to the accused No.1 by the learned Sessions Judge under Section 313 of the Code of Criminal Procedure, accused No.1 has answered all the questions as "false" and absolutely no explanation has been offered. He has taken the plea of alibi stating that one day prior to the incident, he had gone to election. It is also not in dispute that according to the complainant, it is accused Nos.1 and 2 who assaulted the deceased and murdered her. As on the date of the incident, both accused No.1 and the deceased were residing together and the offence took place in the dwelling house where the husband/accused No.1 normally reside. It has been consistently 20 held that if the accused does not offer any explanation as to how his wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime, in view of Section 106 of the Indian Evidence Act.
19. It is also not in dispute that, in the statement recorded under Section 313 of Code of Criminal Procedure, to question No.33 put to the accused No.1 to say anything more about the incident, the accused No.1 has stated that, on the day of death, there was election. He went to election at 6.00 am and returned at 12.00 noon. At that time, the dead body was lying on the floor. The police arrested him in the presence of the villagers. To the question No.44 as to what he would say to the evidence of P.W.14- Puttamma who deposed that Sarojini was living with her husband and children in the house, the accused No.1 has stated that he went to the election on the previous night. Therefore, there are two versions of the accused to establish that he was not present at the spot on the date and time of the incident, which cannot be believed. This clearly indicates that there is inconsistent statement 21 made by accused No.1 and in view of the statement that between 6.00 am and 12.00 noon accused No.1 had been to cast vote, presence of accused No.1 prior to 6.00 am in the house remains undisputed.
20. It is not the case of the accused that some body murdered his wife on the platform in front of the house. If somebody had assaulted the deceased on the platform in front of the house, then the parents of the accused, whose house is situated adjacent, as elicited in the evidence, would not be mute spectators and would not have allowed real culprit to go scot-free. The evidence of P.Ws.14 and 15 neighbours of the accused No.1 clearly depicts that the house of the accused No.1 is not situated in an isolated place. If any person had assaulted the deceased, her scream or cry for help would have invited attention of neighbours, which is not the case of the defence. Hence, murder by some unknown persons is improbable.
21. It is the specific case of the prosecution that in the complaint- Ex.P.1, it is stated that, accused No.2 who is the brother of accused 22 No.1 had veiled looks towards the deceased and misbehaved with her and when the same was brought to the notice of accused No.1, he did not believe the same and was saying that the deceased was making false allegation against his brother. Another circumstance is that the deceased did not attend the engagement ceremony of accused No.2, as spoken to by P.W.4. The said two circumstances might have provoked accused No.1 to assault the deceased using M.O.2-wooden club. Though the witness to recovery of M.O.1- wooden club turned hostile, the fact regarding recovery of M.O.1 at the instance of accused No.1 is spoken to by the Investigating Officer-P.W.29.
22. According to P.Ws.25, 27 and 28, accused Nos.1 and 2 were arrested in Perakaluru of Kerala State at 7.00 am on 07.05.2013 and was produced before the P.W.29 at 9.00 am. The said evidence of P.Ws.25, 27 and 28 has not been controverted by the counsel for the defence and it is not the case of the accused that he was wrongfully detained for two days by the police and the conduct of the accused No.1 is suspicious. Though the accused No.1 has taken the plea of alibi, he has not proved the same by entering the 23 witness box or by producing any documents. No suggestion is made to P.Ws.25, 27 and 29 to the effect that the accused were unlawfully detained for two days from 05.05.2013 to 07.05.2013. Except suggesting P.Ws.28 and 29 to the effect that the accused were arrested from their house, nothing is elicited in the cross- examination of those witnesses to disbelieve their evidence regarding the arrest of accused at Perukaluru of Kerala State. When there was homicidal death of deceased at his house, there was no reason for the accused No.1 to be away from the house that too in a village in Kerala State. Except P.W.13, none of the witnesses have stated that the accused No.1 was present at the spot when parents and relatives of the deceased had come to the place of incident. P.W.13 has stated vaguely that she saw accused No.1. The same is not the case of the defence. The conduct of accused No.1 in absconding is highly unnatural and points towards his guilt. Such conduct is consistent only with the hypothesis that after committing the murder he has absconded.
23. It is well settled that, once the accused takes the plea of alibi, it is for him to prove that he was away from the place of the 24 incident, as held by the Hon'ble Supreme Court in the case of Stat of Haryana vs. Sher Singh and others reported in AIR 1981 SC 1021, at paragraph 4 held as under:
"4. When an accused pleads alibi, burden is on him to prove it under Section 103 of the Evidence Act which provides:
"103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
Illustrations: (a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.
(B) wishes the Court to believe that, at the time in question, he was elsewhere.
He must prove its."
In this case defence did not adduce any evidence to prove the alibi. On the contrary the evidence of P.W.11, Lila, is that on 21st October, 1973, all the accused were 25 produced by Lalji, the brother of the wife of respondent, Sher Singh in village Nand Karan Majra around 8 a.m. when they were arrested. This was in presence of P.W.11, and several others. Police had been there the witness says, from October 17 to 20, 1973. This evidence of P.W.11 remains unrebutted. The plea of the respondents that they had been elsewhere at the time of the occurrence and returned to the place of occurrence by themselves on October 17, when they were arrested by police, is untrue."
24. It is also not in dispute that the accused were arrested in Kerala State and not in their house. Under those circumstances, their statement that the accused were arrested at 12.00 noon at their house is false. It is nobody's case that the crime was first detected at 12.00 noon. In their statement, accused Nos.1 and 2 have stated that by the time they came to their house, the body was lying in front of the house of accused No.1, public had gathered and police arrested them. The gathering of the public and presence of police was not on 05.05.2013 at 12.00 noon. As already stated above, law was set into motion on the complaint given by P.W.1 which was on 06.05.2013 at 10.30 am. It was only thereafter the 26 police had come to the place of incident. P.W.5 in his evidence has deposed that police had come on the next day of the incident and same has remained uncontroverted. When the plea of alibi is disbelieved, then on the very ground the contention of the accused that when he returned to home, police arrested him fails. If the police had come on 05.05.2013 by 12.00 noon, they would have conducted post mortem examination, drawn mahazar and commenced the investigation from that point of time itself. What is the interest of the police to allow destruction of evidence and falsely implicate has not been made out by accused No.1. Therefore, the case of the accused that when they returned home after casting vote, the public had already gathered and police arrested them is false. Therefore, adverse inference has to be drawn against accused No.1, as held by the Hon'ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported in (2020)1 SCC (Cri)
381.
"11. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting 27 the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
25. As already stated above, motive is proved and homicidal death is proved. Though the complainant and some of the related witnesses/prosecution witnesses turned hostile, the evidence of the Doctor -P.W.22, Taluka Magistrate-P.W.23, Police Constable- P.W.24 and the Investigating Officer-P.W.29 stand against the accused No.1. Admittedly, the Prosecution has not filed any appeal against the acquittal of accused Nos.1 and 2 for the offence punishable under Section 201 r/w Section 34 of the Indian Penal Code. The prosecution has also not filed any appeal against acquittal of accused No.2 of the offence punishable under Section 302 of the Indian Penal Code, though a common Charge was framed against accused Nos.1 and 2.
26. The averments made in the complaint and the evidence of the prosecution witnesses makes it clear that the accused No.2, who is brother-in-law of the deceased and brother of accused No.1 had 28 veiled looks towards the deceased and misbehaved with her with sexual intent when nobody was there in the house, and when the same was brought to the notice of accused No.1, he disbelieved the same and got enraged against the deceased stating that she is making false allegations against his brother-accused No.2, and accused No.1 was also enraged since the deceased did not attend the engagement of accused No.2. Therefore, accused No.1 picked up quarrel with the deceased, assaulted her with club in a heat of passion due to sudden provocation, without any pre-meditation. Since the State Government has not filed any Appeal against the acquittal of accused Nos.1 and 2 for the offence punishable under Section 201 r/w Section 34 of the Indian Penal Code, taking into consideration the age of the accused No.1 and all the prosecution witnesses including P.W.1- father, P.W.3-sister, P.W.6-mother and P.W.17-uncle of the deceased and witnesses to the recovery of M.O.2-wooden club, inquest panchanama, spot mahazar, neighbours of the accused and the circumstantial evidences have turned hostile, the case clearly falls under the provisions of Section 29 304 Part I of the Indian Penal Code and not under Section 302 of the Indian Penal Code.
27. A careful reading of the provisions of Section 304 Part I of the Indian Penal Code clearly depicts that whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. Admittedly, in the present case, the act of the accused No.1 was without any pre-meditation or deliberation, but it is only due to sudden provocation or heat of passion.
28. Insofar as the punishment imposed under Section 498A of the Indian Penal Code, there is specific plea in the complaint averments and the evidence of prosecution witnesses including P.W.1 that the accused No.1 used to assault the deceased and show cruelty and material on record clearly depicts that he assaulted the deceased with M.O.1 wooden club, which ultimately resulted in death. The 30 finding recorded by the learned Sessions Judge for convicting the accused Nod.1 for the offence punishable under Section 498A of the Indian Penal Code is just and proper and the accused No.1 has not made out any ground to interfere with the sentence awarded for the offence punishable under Section 498A of the Indian Penal Code and accordingly, the same is hereby confirmed.
29. It is very strange that the learned Sessions Judge, proceeded to pass sentence against the accused No.1 for the offence punishable under Sections 302 and 498A of the Indian Penal Code, without imposing fine. Both the provisions mandate imposition of fine. Unfortunately, the learned Sessions Judge has not imposed any fine for the aforesaid offences, which is against the mandate of the said provisions. Unfortunately, the State has not filed any appeal against non imposition of fine.
30. As already stated above, the Prosecution has not made out any ground to impose extreme punishment of imprisonment for life under Section 302 of the Indian Penal Code and the instant case falls under the provisions of Section 304 Part I of the Indian Penal 31 Code. Therefore, the accused No.1 is liable to be convicted under Section 304 Part I and not under Section 302 of the Indian Penal Code.
31. For the reasons stated above, the first point raised for consideration is answered in the affirmative holding that the accused No.1 has made out a case to interfere with the impugned judgment and order of conviction sentencing the accused No.1 to undergo imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code. The point No.2 is answered in the negative holding that the accused No.1 has not made out any case to interfere with the impugned judgment and order of convicting sentencing him to undergo simple imprisonment for a period of 2 years for the offence punishable under Section 498A of the Indian Penal Code.
32. Hence, we pass the following:
ORDER
(i) The Criminal Appeal is allowed in part.32
(ii) The impugned judgment and order of conviction passed by the learned Sessions Judge sentencing the accused No.1 to under go imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code is hereby modified. The accused No.1 is convicted for the offence punishable under Section 304 Part I of the Indian Penal Code and sentenced to under go imprisonment for a period of ten years and to pay fine of Rs.10,000/-, in default to payment of fine, to under go simple imprisonment for a period of one year.
(iii) The impugned judgment and order of conviction passed by the learned Sessions Judge sentencing the accused No.1 to undergo simple imprisonment for a period of 2 years for the offence punishable under Section 498A of the Indian Penal Code, is hereby confirmed. However, since the learned Sessions Judge has not imposed fine, accused 33 No.1 is imposed fine of Rs.2,000/- for the offence punishable under Section 498A of the Indian Penal Code, in default, to undergo simple imprisonment for six months.
(iv) Both sentences shall run concurrently.
(v) The accused No.1/appellant is entitled to the benefit of set off as provided under Section 428 of the Code of Criminal Procedure.
(vi) The fine amount shall be paid to the complainant as compensation under the provisions of Section 357(3) of the Code of Criminal Procedure, immediately after deposit.
Sd/-
JUDGE Sd/-
JUDGE kcm