Karnataka High Court
Smt. Uma W/O. Rachayya Hiremath, vs The State Of Karnataka, on 3 October, 2012
Bench: K.Bhakthavatsala, B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 3RD DAY OF OCTOBER 2012
PRESENT
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
AND
THE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA
CRIMINAL APPEAL Nos.2551/2011
c/w 2780/2011 (C)
Crl.A No.2551/2011
BETWEEN
Smt. Uma,
W/o Rachayya Hiremath,
Age: 32 years,
Occ: Household,
R/o Pattihal K S,
Bailhongal Tq.,
Belgaum District. Appellant
(By Sri J Basavaraj, Adv., for appellant)
AND
The State of Karnataka,
Rep. By its
State Public Prosecutor,
High Court of Karnataka,
Circuit Bench,
Dharwad. Respondent
(By Sri V M Banakar, Addl. SPP, for respondent)
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Crl.A No.2780/2011
BETWEEN
Durdundayya,
S/o Gurulingayya Hiremath,
Age: 48 years,
Occ: Agriculture,
R/o Pattihal K S,
Tq. Bailhongal,
Distrtict: Belgaum. Appellant
(By Sri Harish S Maigur, Adv., for appellant)
AND
The State of Karnataka,
By Bailhongal Police,
Rep. by State Public Prosecutor,
High Court Building,
Dharwad-1. Respondent
(By Sri V M Banakar, Addl. S P P, for respondent)
---
Criminal Appeal No.2551/2011 is filed under Section
374(1) of Code of Civil Procedure, praying to allow the Appeal
and set aside the order of conviction and sentence dated
14.1.2011 made in S C No.261/2009 on the file of V Addl.
Sessions Judge, Belgaum, and set the appellant at liberty.
Criminal Appeal No.2780/2011 is filed under Section
374(2) of the Code of Criminal Procedure, praying to set
aside the judgment and order of conviction and sentence
dated 14.1.2011 passed in S C No.261/2009 on the file of V
Addl. Sessions Judge, Belgaum.
These Appeals coming on for hearing, the same having
been heard and reserved for pronouncement of Judgment, Dr.
Bhakthavatsala, J., delivered the following:
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JUDGMENT
These two Appeals filed under Section 374(1) of the Code of Criminal Procedure by accused Nos.2 and 1, respectively, are directed against judgment dated 14.1.2011 made in S C No.261/2009 on the file of V Addl. Sessions Judge, Belgaum, convicting the accused for the offences punishable under Sections 498A, 506, 302 and 201 r/w Section 34 of the Indian Penal Code and passing sentence for the above-said offences.
2. Since these two Appeals are directed against one and same judgment of conviction and sentence, we have heard common arguments.
3. Learned Counsel appearing for the appellant in Crl.A. No.2551/2011, who is accused No.2 before the Sessions Court, contended that the trial Court erred in convicting the accused though there is no direct evidence and P.Ws.6,9,10,11,12 and 13, who are neighbours of the accused, have turned hostile to prosecution. It is further 4 contended that the prosecution failed to establish that accused No.1 (appellant in Crl.A No.2780/2011) had illicit relationship with accused No.2 (appellant in Crl.A No.2551/2011) and the trial Court erred in convicting the accused on the basis of alleged extra judicial confession made before P.Ws.6 and 20; that P.W8/Rachayya Gurulingayya Hiremath (husband of accused No.2), who deserted accused No.2 and failed to maintain her and took advantage of the situation and falsely deposed that his wife (Accused No.2) had illicit relationship with Accused No.1. Therefore, he submits that the impugned judgment of conviction and sentence passed against the appellant/accused No.2 may be set aside and the accused may be acquitted for the alleged offences. He relies upon the following decisions:
(i) 2011 AIAR (CRIMINAL) 613 (S K YUSUF Vs. STATE OF WEST BENGAL);
(ii) 2012 AIAR (CRIMINAL 48 (PANCHO Vs. STATE OF HARYANA);5
(iii) 2011 AIAR (CRIMINAL) 253 (M NAGESHWAR RAO Vs. STATE OF A P);
(iv) (2008) 16 S C C 354 (SHANTABAI AND OTHERS Vs. STATE OF MAHARASHTRA); and
(v) 2003 CRL. L J (SC) 3901 (STATE OF RAJASTHAN Vs. RAJARAM).
4. Learned Counsel for the appellant/accused No.1 in Crl. A. No.2780/2011 submitted that the evidence of the complainant and other witnesses are not credit worthy and the trial Court erred in convicting the accused mainly on the ground that P.Ws.9,11 and 12 were not cross-examined; it lost sight of the fact that they are interested witnesses and the Court below ought to have granted opportunity to the appellant to cross-examine them instead of relying upon their evidence in chief. It is further contended that the trial Court erred in convicting the Accused on the basis of theory of last seen together, but the same is not proved in evidence and the motive alleged by the prosecution is not natural and beyond understanding of man of normal prudence and the impugned judgment has resulted in grave miscarriage of 6 justice and prays that the impugned judgment may be set aside and the accused may be acquitted of the alleged offences. He relies on a decision reported in (2009) 2 SCC 281 (SYED HAKKIM AND ANOTHER Vs. STATE, REPRESENTEED BY DEPUTY SUPERINTENDENT OF POLICE, KARUR DISTRICT, TAMIL NADU).
5. Sri V M Banakar, learned Addl. SPP, appearing for the respondent/State, submits that the trial Court, on proper appreciation of evidence and material placed on record, has rightly held that the prosecution brought home the guilt to the accused for the offences levelled against both the accused and awarded adequate sentence and there is no illegality or infirmity in the impugned judgment of conviction and sentence and prays that both the Appeals may be dismissed as devoid of merits.
6. In the light of the arguments addressed by the learned Counsel for the parties, the only point that arises for our consideration is:
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Whether the Court below is justified in convicting both the accused for the offence under Sections 498A, 506, 302 and 201 r/w Section 34 of the Indian Penal Code and awarding sentence for the above-said offences ?
7. Our answer to the above point is as per final order:
8. For the purpose of convenience and better understanding, the appellant in Crl.A No.2551/2011 and Crl.A No.2780/2011 are hereinafter referred to as 'the accused Nos.2 and 1', respectively.
9. Brief facts of the case leading to the filing of the Appeal may be stated as under:
The deceased-Shantavva, aged about 45 years, is the wife of the accused No.1. The Accused No.2 is the wife of accused No.1's younger brother (P.W8/Rachayya Gurulingayya Hiremath). Accused No.1 and his deceased wife- Shantavva were living together since 25 years in the village Pattihal K S, Bailhongal, Belgaum District. Accused No.2 was 8 living in the same house in another portion with her husband- P.W8/Rachayya. It is alleged that since accused No.2 had illicit relationship with accused No.1, her husband left the village and residing with his 1st wife at Hubli; deceased- Shantavva was objecting to illicit relationship between Accused No.1 and Accused No.2 and making it public and on that score the Accused Nos.1 and 2 were ill-treating Shantavva. The accused threatened her with dire consequences and on the intervening night of 6th and 7th of April 2009 at 12.00 mid night, accused Nos.1 and 2 strangulated Shantavva inside the house and her dead body was brought to backyard and tied to a Tamarind tree with an intention to make believe that she has committed suicide by hanging. P.W5/Nirupadayya Baayya Hiremath is the elder brother of the deceased-Shantavva. After he came to know about the death of his sister, he came to the village and saw the dead body of his sister and lodged a written complaint with the Police as per Ex.P5. Bailhongal Police registered the case and issued FIR (Ex.P14) against both the accused for the offence under Sections 302, 201 and 506 r/w Section 34 of I P C. Investigation was taken up. After conducting panchanama 9 regarding scene of crime and inquest, the deceased was subjected for post mortem examination. Accused Nos.1 and 2 were arrested on 8.4.2009. Investigating Officer recorded statements of the witnesses and laid charge sheet against the accused for the offences punishable under Sections 498A, 506, 302 and 201 r/w Section 34 of the IPC. After serving copy of the charge sheet, the accused were directed to take trial before the Court of Sessions. On receipt of the committal records, the case was registered in S C No.261/2009 on the file of Sessions Judge at Belgaum. The trial Court, after hearing arguments and perusing the charge sheet, framed charge against the accused for the above-said offences. The Accused pleaded not guilty and claimed to be tried. In support of the case of prosecution, 23 witnesses were examined and got marked Exs.P1 to P21 and 7 Material Objects. Statement of the accused under Section 313 of Cr. P C was recorded. Both the accused have denied all the incriminating circumstances appearing in the evidence of prosecution witnesses. The accused have not adduced any defence evidence. The trial Court, after hearing arguments and perusing evidence on record, came to a conclusion that 10 the prosecution has brought home the guilt to the accused for the offences punishable under Sections 498A, 506, 302 and 201 r/w Section 34 of IPC. After hearing on the point of sentence, the trial Court has awarded the following sentence as against the accused:
(a) to undergo life imprisonment for the offence under Section 302 r/w Section 34 of IPC and pay fine of `10,000/-
each, in default in payment of fine, to undergo further imprisonment for three years;
(b) to undergo simple imprisonment for 2 years and pay fine of `2,000/- each, in default in payment of fine, to undergo further imprisonment for one year for the offence punishable under Section 498A r/w Section 34 of IPC;
(c) to undergo simple imprisonment for three years and pay fine of `5,000 each, in default in payment of fine to undergo further simple imprisonment 11 for two years for the offence under Section 201 r/w Section 34 of IPC; and
(d) to pay fine of `1,000/-, each, in default in payment of fine, to undergo simple imprisonment for one year for the offence punishable under Section 506 r/w Section 34 of IPC.
This is impugned in these two Appeals.
10. At the very outset, it must be mentioned that there are no eye witnesses to the alleged incident of murder. The case of the prosecution solely hinges upon the circumstantial evidence. P.W5/complainant (elder brother of the deceased) has deposed that accused No.1 got married to his sister-Shantavva about 25 years back and residing at Pattihal, with her husband (Accused No.1), accused No.2/Uma and her brother-in-law-P.W8/Rachayya; since last 7 to 8 years prior to death of his sister, both the accused were illtreating her; relationship between accused No.1 and his wife strained on account of accused No.1's extra marital 12 relationship with accused No.2 and his deceased sister was objecting to it and therefore his sister-Shantavva was illtreated and assaulted; the elders advised the Accused to turn into a good leaf, but in vain. It is in his evidence that after he received information about the murder of his sister, he went to Pattihal village and noticed the dead body of his sister lying on the ground with a rope on her neck in the backyard of house of the accused. P.W5 was cross-examined at length by the accused, but nothing worthwhile is elicited in his cross-examination to disbelieve his evidence. P.W6/Kavita and P.W13/ Madiwalappa are husband and wife. The neighbours of the accused viz., P.W9/Irappa, P.W10/Dundappa, P.W11/Somayya, P.W12/ Dundappa Somappa Hongar, did not support the case of prosecution. P.W8/Rachayya-husband of accused No.2, P.W14/ Shivalingayya, s/o accused No.1 and P.W15-elder brother of the deceased are material circumstantial witnesses. According to their evidence, Accused Nos.1 and 2 had illicit relationship. P.W-16/Mahantesh and his friend P.W-20/ Suresh Iswharappa Wali have deposed 13 that in the morning of 7.4.2009 both the Accused came to them and made extra judicial confession stating that they have killed Shantavva and sought their help.
P.W2/Chanabasappa has deposed that in his presence, the Investigating Officer seized the rope (M.O-1), blouse (M.O-
7), saree (M.O-5), petticoat (M.O-6), blue cloth (M.O-3), white cloth (M.O-4) and a rope (M.O-2) under a panchanama (Ex.P3). P.W3/Imamhussain has deposed that he was co- panch of P.W2 with regard to seizure of the clothes of the deceased and a rope and other clothes (M.Os-1 to 7) were seized under seizure panchanama (Ex.P3). P.W4/Shivanand has been examined by the prosecution to prove that a spot panchanama was drawn in his presence on 8.4.2009 as per Ex.P4. But, P.W1/Irappa, who was examined to prove the inquest panchanama and photographs of the deceased, has not supported the case of prosecution. P.W17, who is the Advocate and relative of the deceased, has deposed that he wrote the complaint (Ex.P5). P.W18 is Dr. Babu Basavanaik Naik, who conducted autopsy over the deceased and issued post mortem report as per Ex.P13, opining that Shantavva died due to strangulation. P.W22 is the PSI, who registered 14 the case and issued FIR. P.W19 is the Police Constable, who carried the FIR to the Court. P.W-21 is the Police Constable who kept watch over the deceased and took the dead body for post mortem examination. P.W23 is the Investigating Officer, who investigated the case and laid charge sheet against the accused. The trial Court has rightly held that it is not a case of suicidal death, but an homicidal death by strangulation. The motive attributed to the accused is that accused Nos.1 and 2 were in illicit relationship for which the deceased was objecting and therefore accused Nos.1 and 2 were illtreating the deceased, gave threat with dire consequences and on the intervening night of 6th and 7th of April 2009, during mid night, they killed her by strangulation and shifted the dead body and tied to a Tamarind tree situated in the backyard of the house to make believe that Shantavva committed suicide by hanging. Five photographs at Ex.P2 series are taken at the tree to which the deceased was tied. Keeping in view the height of the tree at which the rope was tied and the ground level, any prudent person can conclude that it is not a case of hanging.
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11. Now, we refer to the evidence of P.W8-husband of accused No.2. It is in his evidence that he retired from Army in the year 2000 and residing at Pattihal for about 4 or 5 years; one Smt. Sudha is his first wife, as she had no issues, with her consent, he married to accused No.2-Uma in the year 2001, but she too had no issues; they were residing in a portion of the house and in the other portion of the house, accused No.1 and his deceased wife were residing; 5 or 6 months prior to the death of Shantavva, he saw accused No.1 and accused No.2 together sleeping in the house as he was fed up of the issue, he (P.W-8) left the village and residing with his first wife at Hubli; in his absence at Pattihal village, accused No.1 used to take meals in his house and had loose talk with accused No.2 and she was also behaving in indecent manner with accused No.1 and this fact was known to the sons of accused No.1 and when they questioned accused No.1, he began to assault them. Therefore, the sons of accused No.1 left the village and residing in the parental house of their wives. It is in his evidence that on 7.4.2009, P.W13 informed over phone 16 about the death of Shantavva and he came to Pattihal and noticed the dead body and seen the place, as shown in the photographs at Ex.P2 series, and came to a conclusion that it was not a case of suicide. P.W14/Shivalingayya (s/o Accused No.1) has deposed that his father had illicit relationship with Accused No.2 and his deceased sister opposed it; he and his brother did not like it and therefore they left the house about one year prior to death of their sister; on 7.4.2009 at about 7.00 a m, through Madiwalappa Balappa Ganganavar, he came to know murder of his mother and came to the village and saw the dead body of his mother. From the evidence of P.W8/husband of Accused No.2 and P.W14/elder son of accused No.1, it is crystal clear that accused Nos.1 and 2 had illicit relationship and that was opposed by the deceased and her children. It is also established in evidence that accused No.2 was living alone in a portion of the house belonging to her husband (P.W-8) and in the other portion, Accused No.1 and the deceased were living; P.W8 was staying in Hubli along with first wife. 17
12. At the cost of repetition, it must be mentioned that there is no direct evidence to connect the accused with the alleged homicidal death of Shantavva. It is not the case of accused Nos.1 and 2 that they were not present in the house on that night. Accused No.1 being the husband of deceased- Shantavva, has not lodged complaint with Police as to unnatural death of his wife. It is in the evidence of prosecution that the incident occurred during mid night of 6th and 7th of April 2009. It is quite possible to infer that when she (the deceased) was asleeping on that night, both the Accused killed her by strangulation and then shifted the dead body to the backyard of their house, tied her legs and body and hanged her to a tree to make believe that she has committed suicide. Her unnatural death only connects Accused Nos.1 and 2 and the trial Court has rightly convicted both the Accused for the offence under Section 302 and Section 201 r/w Section 34 of IPC. But, there is no ground to convict the Accused for the offences punishable under Sections 498A and 506 of IPC. The decisions cited by the learned Counsel for the appellants are of no avail to the case of the accused. The evidence of P.Ws.16 and 20 before 18 whom the accused made extra judicial confession supports the case of prosecution. There is no material placed on record to show that P.Ws.16, 20 and other material witnesses viz., P.W5, P.W14 had any axe to grind against the Accused. In nutshell, the trial Court is justified in convicting both the Accused for the offence under Sections 302 and 201 r/w Section 34 of IPC. The Accused are entitled for an acquittal for the offences punishable under Sections 498A and 506 r/w Section 34 of IPC.
13. The sentence of imprisonment for life and fine of `10,000/- each and default sentence imposed for the offence under Section 302 r/w Section 34 of IPC against accused Nos.1 and 2 do not call for interference. For the offence punishable under Section 201 (causing disappearance of evidence of offence or giving false information to screen the offender) r/w Section 34 of IPC, the trial Court has awarded simple imprisonment of 3 years and fine of `5,000/- each, in default in payment of fine to undergo further simple imprisonment of 2 years. According to Section 201 of IPC- causing disappearance of evidence of offence, or giving false 19 information to screen offender in relation to a capital offence, it is punishable with imprisonment of either description for a term, which may extend to 7 years and shall also be liable to fine. Since the offence under Section 302 of IPC is punishable with death, the offence shall be treated as a capital offence and as against the maximum punishment of imprisonment of 7 years, the trial Court has awarded sentence of imprisonment for 3 years, but committed an error while awarding imprisonment for non payment of fine. According to Section 65 of IPC, in default of payment of fine, the term of which the Court directs the offender to be imprisoned shall not exceed one-fourth of the term of the maximum imprisonment fixed for the offence. Therefore, in the event of default in payment of fine for the offence under Section 201 r/w Section 34 of IPC, the Accused Nos.1 and 2 shall undergo imprisonment for 21 months (ie., ¼ of 7 years) and to that effect the impugned order of sentence requires modification. The point formulated for our consideration is partly answered in the affirmative.
14. In the result, we pass the following order: 20
(i) Both the Appeals are partly allowed; (ii) The order of conviction and sentence dated
14.1.2011 made in S C No.261/2009 on the file of V Addl. Sessions Judge, Belgaum, against the Accused Nos.1 and 2 for the offence under Sections 498A and 506 r/w Section 34 of IPC are set aside;
(iii) Conviction of the Accused Nos.1 and 2 for the offence punishable under Section 302 and 201 r/w Section 34 of IPC is confirmed;
(iv) Sentence passed against the Accused Nos.1 and 2 for the offence under Section 302 r/w Section 34 of IPC is also confirmed;
(v) Sentence of imprisonment and fine imposed as against the Accused Nos.1 and 2 for the offence punishable under Section 201 r/w Section 34 of IPC is confirmed, holding that in the event of default of payment of fine imposed for the said offence, the Accused shall undergo further imprisonment for a period of 21 months instead of 3 years;
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(vi) Accordingly, the impugned judgment of conviction and sentence are modified.
Sd/-
JUDGE Sd/-
JUDGE Bjs