Karnataka High Court
Sri Nagappa @ Nagarajappa vs State By on 30 August, 2023
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NC: 2023:KHC:31109-DB
CRL.A No.1252/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE C.M.JOSHI
CRIMINAL APPEAL No.1252/2017 (C)
BETWEEN:
SRI NAGAPPA @ NAGARAJAPPA
S/O KOSI HALAPPA
AGED ABOUT 38 YEARS
COOLIE
R/AT BELALAGERE HALASIDAPPA LAYOUT
1ST CROSS, MITLAKATI VILLAGE
HARIHARA TALUK-577 601
DAVANAGERE DISTRICT
(NOW IN JUDICIAL CUSTODY) ...APPELLANT
(BY SRI AMBRISH B.N, ADVOCATE)
AND:
STATE BY
Digitally signed
HARIHARA RURAL POLICE STATION
by PRABHU REP BY STATE PUBLIC PROSECUTOR
KUMARA HIGH COURT BUILDING
NAIKA
Location: High AMBEDKAR VEEDHI
Court of BENGALURU-560 001 ...RESPONDENT
Karnataka
(BY SRI VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 30.05.2017 PASSED BY THE
PRINCIPAL DISTRICT & SESSIONS JUDGE, DAVANAGERE IN
S.C.NO.143/2016 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 498A OF IPC.
THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, K.S.MUDAGAL.J DELIVERED THE FOLLOWING:
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CRL.A No.1252/2017
JUDGMENT
Challenging the order of his conviction and sentence, the accused in S.C.No.143/2016 on the file of the Principal District and Sessions Judge, Davanagere has preferred this appeal.
2. The appellant was the sole accused in SC No.143/2016. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
3. Some of the admitted facts of the case are as follows:
(i) The accused was married to the deceased Renukamma about 14 years prior to 21.07.2016. Out of the said wedlock, they had two children by name Sudeep and Hanumantha (PW.7).
(ii) PW.4 is the mother and PWs.6 and 13 are the brothers of Renukamma. PWs.4, 6 and 13 were residing at Mitlakatte Village, Harihara Taluk.
(iii) After marriage, the accused had migrated to Mitlakatte village and residing with his wife and children in the said village. At the time of the incident, he was residing along with his family in the house of PW.12 as tenant. PWs.5 and 8 -3- NC: 2023:KHC:31109-DB CRL.A No.1252/2017 to 10 were the neighbours of the accused and the deceased at the relevant time. On 21.07.2016 Renukamma was found dead in their house at Mitlakatte village with certain injuries.
4. The case of the prosecution in brief is as follows:
(i) That the accused was addicted to alcohol, he was pestering the deceased for money and used to assault her demanding money. PWs.4, 6 and 13 had advised him to mend his behaviour. But he had not reformed.
(ii) On 20.07.2016 between 9.00 p.m. to 10.00 p.m., the accused quarreled and assaulted the victim demanding money. PWs.6 and 13 on advising him went back to their house along with Sudeep the elder son of the victim.
(iii) The accused, the deceased and their son PW.7 remained in their house. Since the victim was not paying money to the accused whenever demanded, irked by that during the intervening night of 20/21.07.2016 with an intention to commit her murder, accused assaulted her on her head with stone MO.6. When she raised alarm, he took out MO.5 sickle and assaulted her and committed her murder. The same was witnessed by PW.7.
(iv) Being panicked about the incident, PW.7 sat at home quietly and in the morning at 7.00 a.m. he ran to his -4- NC: 2023:KHC:31109-DB CRL.A No.1252/2017 grandparent's house and informed PWs.4, 6 and 13 about the incident.
(v) PW.13 filed the complaint as per Ex.P17 before PW.17 the Sub Inspector of Police of Harihara Rural Police Station. On the basis of the said complaint, PW.17 registered the first information report as per Ex.P18 against the accused.
He conducted inquest mahazar and spot mahazar. During investigation, PW.17 arrested the accused. On the basis of the voluntary statement of the accused, he recovered MOs.5 and 6 the weapons of the offence under mahazar Ex.P4 in the presence of PWs.2 and 15 the pancha witnesses. PW.17 then handed over further investigation to PW.18.
(vi) PW.18 got the statement of PW.7 eyewitness recorded through the Magistrate under Section 164 of Cr.P.C, conducted further investigation and filed the charge sheet.
5. The trial Court on hearing the parties, framed the charges against the accused for the offences punishable under Sections 498A, 302 of IPC. Since the accused denied the charges and claimed trial, the trial was conducted. In support of the case of the prosecution, PWs.1 to 18 were examined, Exs.P1 to P23 and MOs.1 to 10 were marked. After his examination under Section 313 of Cr.P.C., the accused neither -5- NC: 2023:KHC:31109-DB CRL.A No.1252/2017 filed any defence statement nor adduced any defence evidence.
6. The trial Court on hearing the parties, by the impugned judgment and order convicted the accused for the offences punishable under Sections 498A and 302 of IPC. Further the trial Court sentenced the accused for the sentence of imprisonment and fine as per the table below:
Sl. Offences Sentence of Fine Default
No. punishable under imprisonment amount sentence
section for which in Rs.
convicted
1 498A of IPC Imprisonment 3,000/- Imprisonment
of two years of 2 months
2 302 of IPC Life 10,000/- Imprisonment
imprisonment of 6 months
Submissions of Sri Ambrish.B.N, learned Counsel for the accused:
7. The evidence on record for recovery of MOs.5 and 6 was unreliable. So far as motive circumstance, having regard to social status of the parties, such quarrels are common among such families. The trial Court relied mainly on the evidence of PW.7 the alleged eyewitness. He was child witness. His statement was recorded after two weeks of filing of the complaint. There were contradictions in the evidence of PW.7 and his statement Ex.P9 recorded under Section 164 of Cr.P.C. His evidence shows that he was tutored. Therefore the trial Court committed error in convicting the accused based on -6- NC: 2023:KHC:31109-DB CRL.A No.1252/2017 the said evidence. The other circumstances like motive and recovery of incriminating materials were not proved by cogent and consistent evidence. According to the prosecution, the accused was addicted to alcohol and he assaulted the victim on provocation during the course of quarrel. That shows that he had no intention to commit murder. Therefore at the most, the case falls under Section 304 Part II of IPC.
8. In support of his submissions, he relies on the following judgments:
(i) K.Venkateshwarlu v. State of A.P.1
(ii) Devendra Nath Srivastava v. State of U.P.2
(iii) Nachittar Singh v. State of U.P.3
(iv) Undavalli Narayana Rao v. State of A.P.4 Submissions of Sri Vijayakumar Majage, learned SPP-2
9. The case is based on the evidence of the eyewitness PW.7. The presence of the accused, the deceased and PW.7 at the scene of offence was natural and that was not disputed by the accused. The medical evidence shows that the death was homicidal one. The evidence of PWs.4, 5, 6 and 13 show that soon after their arrival at the scene of offence on the information of PW.7, the accused ran away 1 (2012) 8 SCC 73 2 (2017) 5 SCC 769 3 (1982) 1 SCC 609 4 (2009) 14 SCC 588 -7- NC: 2023:KHC:31109-DB CRL.A No.1252/2017 from the house and the victim was found dead. How the victim died was within the special knowledge of PW.7. So far as delay in recording Section 164 statement of PW.7 the faulty investigation, if any, does not demolish the case of PW.7. There are no material contradictions in the statement of PW.7 and the evidence of other witnesses. The trial Court on sound appreciation of the evidence, convicted the accused. Same does not warrant interference of this Court.
10. Considering the submissions of both side and on perusal of the materials on record, the point that arises for determination of this Court is:
"Whether the impugned judgment and order of conviction and sentence suffers any illegality or impropriety?"
Analysis
11. The case of the prosecution is based on:
(i) The evidence of eyewitness PW.7;
(ii) The circumstance of motive and the evidence of
PWs.4, 5, 6 to 9 and 13 regarding the same;
(iii) The medical evidence;
(iv) The circumstance of recovery of MOs.5 and 6 at the instance of the accused; and -8- NC: 2023:KHC:31109-DB CRL.A No.1252/2017
(v) The evidence of official witnesses. Reg. Motive:
12. As already noticed, the relationship between the deceased, accused, PW.7 and PWs.4, 6 and 13 is not in dispute. The accused did not even dispute that PW.12 was his landlord. PWs.4, 6, 13, 5, 8 and 9 the mother, brothers and neighbours of the deceased respectively, have categorically deposed that the accused used to pester the victim for money and whenever she declined to pay the same, he was assaulting her. PWs.6 and 13 also deposed that on 20.07.2016 the accused picked up quarrel with the deceased in connection with his demand for money for his alcoholism and assaulted her. They further deposed that when they advised, he disregarded them also.
13. PW.13 further states that on advising the accused he left to his house along with Sudeep the elder son of the accused and the victim. PWs.4, 6 and 13 further deposed that in the next morning PW.7 rushed to their house and informed that the accused assaulted the victim and she was lying in the house with bleeding injuries. On they rushing to the house, they found the victim dead. The accused and the victim were married 14 years prior to the incident. In the evidence of -9- NC: 2023:KHC:31109-DB CRL.A No.1252/2017 PWs.4, 6 and 13 absolutely nothing was elicited to show why they falsely implicated him in the case. PWs.4, 6, and 13 being near and dear ones of the deceased and residents of the same village would be in the normal circumstances knowing about the affairs of the family of the accused and the victim. Similarly, PWs.5, 8 and 9 neighbours and PW.12 the landlord of the accused and deceased also had no motive to falsely depose against him. On the motive aspect, the evidence of the aforesaid witnesses was not impeached. Therefore the trial Court was justified in accepting the evidence of prosecution on motive circumstance. Reg. eyewitness:
14. According to the prosecution, during the intervening night of 20/21.07.2016, the accused, the deceased and PW.7 were sleeping in their house and the accused assaulted the victim. When the victim started gasping, PW.7 woke up and found the accused with weapon in his hand and the victim was lying with bleeding injuries. PW.7 was in panic and under the apprehension that the accused might assault him also, sat quietly in the house till morning. In the morning when the accused opened the door, he ran away and informed PWs.4, 6 and 13 about the incident
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NC: 2023:KHC:31109-DB CRL.A No.1252/2017 and then they came to the spot. On seeing them, the accused ran away. In the cross-examination of none of the said witnesses, accused disputed that himself, victim and PW.7 were living in the said house. He also did not dispute that the victim was found dead in his house during the intervening night of 20/21.07.2016, thereby the presence of the accused, the deceased and PW.7 at the scene of offence was probabilized.
15. In fact in the cross-examination of PW.4, the accused himself suggests that he was suspecting that the deceased had extramarital relationship with some other person and during the night of the incident, he found some stranger in the house and when he was trying to assault him, the deceased intervened to rescue that man and the stone hit the deceased and she died. Such suggestions probabilized the presence of the accused, the deceased and PW.7 and Renukamma died homicidal death. The complaint was registered on 21.07.2016 and in the complaint PW.7 was figured as eyewitness. It is true that despite that PW.17 neither recorded the statement of the child/PW.7 nor took him to the learned Magistrate immediately for recording his
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NC: 2023:KHC:31109-DB CRL.A No.1252/2017 statement under Section 164 of Cr.P.C. Whether that itself demolishes the evidence of the prosecution is the question?
16. Ex.P17 the complaint and Ex.P18 the first information report show that the complaint was registered at 10.00 a.m. on 21.07.2016. PW.7 had informed PWs.4, 6 and 13 at 7.00 a.m. On the same day, Ex.P18 the first information report was registered. The first information report was delivered to the Court on the same day. At the first instance itself, PW.7's name appeared in the charge sheet as the eyewitness. Therefore the delay in recording Ex.P9 the statement of PW.7 itself does not erode his evidence regarding he being the eyewitness. In the cross-examination of PW.7 his presence was not disputed.
17. Then the question is whether the evidence of PW.7 about the accused assaulting the victim is acceptable? In Ex.P9, PW.7 has stated that when he woke up, he found that his mother was bleeding through mouth, she was gasping and the accused was sitting with sickle in his hand. He further states in Ex.P9 that his father/the accused, assaulted the victim with sickle on the head and he sat quiet under the apprehension that the accused might assault him also. In the
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NC: 2023:KHC:31109-DB CRL.A No.1252/2017 morning soon after the accused opened the door, he rushed to his grandparents' house. Even in his deposition he stated the same thing. There are no material contradictions in Ex.P9 and the evidence of PW.7. Ex.P9 was recorded on 04.08.2016. PW.7 was examined before the Court on 22.03.2017. It is material to note that at the time of the alleged incident, PW.7 was aged hardly 5 years which is not the age to comprehend and divulge all minute things like a tutored parrot. There are no material contradictions much less the contradictions in Ex.P9 and in the evidence of PW.7 before the Court.
18. Though it was argued that PW.7 was tutored to give statement as per Ex.P9, nothing was elicited in the cross- examination of the said witness or the Investigating Officer or in the evidence of other witnesses to show that when PW.7 was taken before the learned Magistrate, he was tutored or he was under the influence of the police or PWs.4, 6 and 13. As against that, the accused himself in the cross-examination of PW.7 suggests that PW.7 was affectionate to the accused which he admitted. Despite he being affectionate to the accused, PW.7 implicated the accused in the case. That goes to show that the evidence of PW.7 was credible. Under the
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NC: 2023:KHC:31109-DB CRL.A No.1252/2017 circumstances, the allegation of false implication of accused by tutoring PW.7 carries no merit. PW.7 though was close relative, his evidence regarding he witnessing the crime was cogent and consistent.
19. In this regard, the Hon'ble Supreme Court in K.Venkateshwarlu's case referred to supra held that there cannot be any dispute with regard to the contradictions that the child is pliable witness and there is possibility of tutoring the child easily either by threat, coercion or inducement. It is further held that careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the Court decides to rely upon it.
20. In the evidence of PW.7 or the Investigating Officer or other witnesses, nothing could be elicited to show that PW.7 was tutored. Nothing was brought on record to show that when PW.7 gave statement before PW.18, he was under any threat or undue influence. Therefore the said case cannot be applied. Under the circumstances, the trial Court was justified in accepting the evidence of PW.7. Reg. Circumstance of recovery:
21. According to the prosecution, on arrest of the accused on 21.07.2016, during interrogation, he confessed to
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NC: 2023:KHC:31109-DB CRL.A No.1252/2017 show MOs.5 and 6 and led the police and the panchas PWs.2 and 15 to his house and produced MOs.5 and 6 they were seized under the mahazar Ex.P4 in the presence of PWs.2 and
15. The accused said to have produced those weapons from the scene of offence itself.
22. PW.17 conducted inquest mahazar at the same place on the same day between 11.00 a.m. to 1.00 p.m. On the same day between 1.30 p.m. to 2.30 p.m. he conducted spot mahazar and seized and recovered MOs.1 to 4 blood stained plastic mat, blood stained pillow, blood stained mud and mud from the scene of offence respectively. Therefore it becomes clear that PW.17 had visited the scene of offence twice and searched in that place. Even the other witnesses by that time had frequented the scene of offence. During that period, the weapons used for the commission of the offence were not found. Again on the same day between 6.30 p.m. to 7.30 p.m. when PW.17 went to the said spot with the accused, he claims to have found MOs.5 and 6 at the instance of the accused. PW.17 in his evidence states that the accused had kept MO.6 in the thatched wall at the scene of offence. In the ordinary course those MOs.5 and 6 should have been noticed at the scene of offence during the earlier visits only.
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NC: 2023:KHC:31109-DB CRL.A No.1252/2017 Therefore the evidence with regard to recovery of MOs.5 and 6 are not credible.
Reg. Medical Evidence:
23. PW.11 the doctor who conducted the postmortem on the dead body and issued report Ex.P14 deposed that during post mortem examination he found the following external injuries:
(i) There is an abraded wound reddish brown in colour measuring 06 cm x 05 cm incorporating a lacerated wound measuring 02 cm x 1.5 cm x skull bone deep over the outer part of left eye and outer part of left side of the forehead.
The following were the internal injuries:
Scalp: On reflection there is a diffuse blood extravasation corresponding to injury No.1 as mentioned above in (i).
Skull: (1) There is a linear fracture measuring 13 cm over the left temporo parietal part. (2) There is a linear fracture measuring 09 cm over the left temporal part extending outwards from the middle of the above fracture. (3) There is a linear fracture measuring 08 cm over the right temporal bone extending inside to right anterior cranial fossa (4) There is a hinge type of fracture measuring 16 cm in the middle cranial fossa extending from one side to the other side."
24. The above evidence goes to show that the victim had external injuries on her head and her skull was open and
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NC: 2023:KHC:31109-DB CRL.A No.1252/2017 was fractured. PW.11 deposes that at the request of the Investigating Officer, he examined MOs.5 and 6 and opined that death is due to asphyxia as a result of aspirated blood in the respiratory tract filling tracheobronchial passages consequent upon seepage of blood from the fractured part of base of skull (Middle Cranial Fossa) due to head injury sustained by MOs.5 and 6.
25. In the cross-examination of PW.11 it was suggested that such injury could be caused if the victim hits the door or the door hits the victim or if she falls down. Both the suggestions were denied by PW.11. But contrary to that, the accused himself in the cross-examination of PW.4 suggested that when he was trying to assault another person, the victim intervened and suffered injuries. The evidence of PW.11 was corroborated by the evidence of eyewitness PW.7 and other circumstantial witnesses PWs.4, 13 and 15. Therefore despite the failure to prove recovery circumstance, the other evidence regarding the death being homicidal one and the accused being author of the injuries was acceptable. Reg. Section 106 of the Evidence Act:
26. The accused, deceased and PW.7 and their elder son being ordinary residents of the house where the incident
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NC: 2023:KHC:31109-DB CRL.A No.1252/2017 took place was not in dispute. The victim dying due to homicidal injuries is proved beyond reasonable doubt. Under the circumstances, the cause of death of his wife would be within his special knowledge, that was for the accused to explain. Except suggesting to PW.11 that the injuries were accidental one, which he denied, no other theory of cause of injury or death was suggested to other witnesses. Even as per the suggestions made to PW.4, it was the accused himself who landed blow on the victim.
27. In the similar circumstances, the Hon'ble Supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra5 in paras 14 and 15 held as follows:
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 5 (2006) 10 SCC 681
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NC: 2023:KHC:31109-DB CRL.A No.1252/2017 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC
271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
"(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case
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NC: 2023:KHC:31109-DB CRL.A No.1252/2017 lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
(Emphasis supplied)
28. As per the above judgment, after the prosecution discharging its burden of proving the charge, the burden shifts to the accused and he has to take out all plausible defence to probabilize the same, which the accused has not done. Even in his examination under Section 313 of Cr.P.C. he did not whisper anything about the cause of death nor he said that injuries were accidental one. The case on hand is fully covered by the judgment in Trimukh Maroti Kirkan's case referred to supra. The trial Court considering all the above said fact and circumstances and on sound appreciation of the evidence, rightly held that the charges were proved beyond reasonable doubt.
29. It was contented that Section 498A of IPC applies only where harassment is in connection with demand of dowry. Reading of Section 498A IPC clearly shows that there are two parts in Section 498A of IPC. One part deals with harassment in connection with demand for dowry which is likely to drive her to commit suicide or to cause grave injury or danger to life, limb or health of her. The second part deals with cruelty of such nature which causes grave injury to her
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NC: 2023:KHC:31109-DB CRL.A No.1252/2017 life or body. Therefore the judgment in Devendra Nath Srivastava's case referred to supra is not applicable.
30. In the judgment in Undavalli Narayana Rao's case referred to supra it was held that, in family life based on the social status there might be routine quarrels in the class in which the accused and the deceased belonged to. But that should not go to the extent of taking away the life of the wife. Therefore that judgment is also not applicable to the facts of the present case.
31. The last contention of learned Counsel for the accused is that the offence falls under Section 304 Part I of IPC, therefore the sentence of imprisonment for life may be reduced to sentence of imprisonment upto 10 years. To support the said contention he relies on the judgment of the Hon'ble Supreme Court in Nachittar Singh's case referred to supra. Reading of the said judgment does not reveal what was the facts of that case, what was the weapon used and how the accused assaulted the victim.
32. In the case on hand, the accused has brutally assaulted his wife during night time in the presence of his five year old child, that too twice, first by stone and second time with sickle. Witnessing the said incident, PW.7 was
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NC: 2023:KHC:31109-DB CRL.A No.1252/2017 traumatized. The accused sits quiet till morning and when relatives of the victim came to the spot, accused runs away. Such conduct goes to show that the fact of assaulting was with an intention to cause death. It was clear case of murder. Therefore the impugned judgment and order of conviction and sentence for both the charges do not warrant any interference. Hence the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KSR List No.: 2 Sl No.: 5