Karnataka High Court
Shri. Sadashiv S/O Somakka Potaraj vs The State Of Karnataka on 27 January, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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CRL.A No. 100319 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 100319 OF 2018
BETWEEN:
SHRI. SADASHIV
S/O SOMAKKA POTARAJ
AGE: 35 YEARS, OCC: LABOURER,
R/O: ALAGUR, JAMAKHANDI TALUKA,
BAGALKOT DISTRICT
...APPELLANT
Digitally signed
by ROHAN
HADIMANI T
(BY SRI.PRASHANT S. KADADEVAR, ADV.)
ROHAN Location: HIGH
HADIMANI COURT OF
KARNATAKA
T DHARWAD
Date:
2023.02.04
13:09:53 +0530 AND:
THE STATE OF KARNATAKA,
C P I, JAMAKHANDI,
REP. BY S P P, HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND
SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE PASSED BY THE I ADDL. DIST. &
SESSIONS JUDGE, BAGALKOT, TO SIT @ JAMAKHANDI, IN ITS
S.C.NO.78/2017, DATED 18/20.08.2018 AND THEREBY ACQUIT
THE APPELLANT/ACCUSED BY ALLOWING THIS APPEAL.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
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CRL.A No. 100319 of 2018
'PRONOUNCEMENT OF JUDGMENT', THIS DAY,
G BASAVARAJA J., DELIVERED THE FOLLOWING:
JUDGMENT
1. Feeling aggrieved and dissatisfied with the judgment and order of conviction dated 18.08.2018 passed by the learned I Additional District & Sessions Judge, Bagalkot, sitting at Jamakhandi in S.C.No.78/2017 for the offence punishable under Section 302 of IPC.
2. Rank of the parties is referred to as per their ranking before the trial Court for the sake of convenience.
3. The brief facts of the case of the prosecution is that:
3.1 On 19.04.2017 at 12.00 a.m. in the house of accused, Alagur village within the jurisdiction of rural police station, Jamakhandi, the accused has committed a murder of his wife with chopper as his wife has refused to give money thereby the accused has committed the offence punishable under Section 302 of IPC. -3- CRL.A No. 100319 of 2018
4. After investigation, the Investigation Officer has submitted the charge sheet against the accused for the offence punishable under Section 302 of IPC.
The learned Principle Senior Civil Judge & JMFC Jamakhandi has taken cognizance against the accused and case was registered in C.C.No.21/2017 and case was committed to the Sessions Judge Court, sit at Jamakhandi.
5. The learned Sessions Judge has framed the charges against the accused for the alleged commission of offence. Same was read over and explained to the accused in Kannada language and the accused has pleaded not guilty and claimed to be trial.
6. In order to bring home the guilt of the accused, the prosecution has examined 17 witnesses as PWs-1 to
17. 23 documents got marked as Exs.P1 to P23. 7 material objects marked as M.O.Nos.1 to 7. On closure of prosecution side evidence, the statement under Section 313 of the Cr.P.C. was recorded as to -4- CRL.A No. 100319 of 2018 the incriminating evidence put to him. The accused has denied the evidence appearing against him but he has not chosen to lead any defence on his behalf. On hearing the arguments on both sides, the learned Session Judge has convicted the accused for the commission of offence punishable under Section 302 of IPC.
7. Being aggrieved by this judgment of conviction and order of sentence passed by the learned District and Session Judge at Bagalkot, sitting at Jamakhandi, the accused has preferred this appeal.
8. The learned counsel appearing on behalf of the appellant has submitted his arguments that the impugned judgment is not maintainable either in law or on facts. The alleged incident took place on 19.04.2017 at 12.00 a.m. and complaint came to be filed on 20.04.2017 at 9.30 hours. The prosecution has failed to explain the delay in filing the complaint, which is fatal to the case of the prosecution. -5- CRL.A No. 100319 of 2018
9. The complaint reveals that the deceased and accused were happy that there is no motive, intention to commit the murder of the wife of the accused and that there are no eye witness to this incident. The entire case of the prosecution is based on circumstantial evidence. There should be a complete chain of circumstances to prove the guilt of the accused. But, the prosecution has utterly failed to prove the chain of circumstances, which must be complete. Further, it is submitted that the trial Court has not at all considered the omissions, contradictions and improvements in the case and that there is no cogent and probability evidence to prove the guilt of the accused. The accused has not committed any offences as alleged by the prosecution, but the trial Court has failed to appreciate the evidence of the witnesses in a proper perspective manner.
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10. PW-10, who has conducted the post mortem of the body has given a opinion as per Ex-P11 to the effect that he has not spoken anything about the blood stains on the chopper, which is alleged to have been used for committing an offence. Apart from that, blood group of the deceased was not tested and it is not compared with the blood, which is stained on the chopper. PW-1 has deposed in his cross-examination that his daughter deceased Malashri has led happy married life for a period of 10 years and was very happy when the appellant had come to his village, two days prior to this incident. But same is not considered by the trial Court and on all these grounds sought for allow this appeal and acquit the accused for the commission of offence punishable under Section 302 of IPC.
11. The learned Additional SPP has submitted his arguments that there are no material omissions, contradiction in the evidence of the prosecution -7- CRL.A No. 100319 of 2018 witnesses. The trial Court has properly appreciated the evidence on record in a proper perspective manner. The appellants have not made out any grounds to interfere with the impugned judgment of conviction and sentence passed by the trial Court. On all these grounds sought for dismissal of the appeal.
12. We have carefully examined the evidence of prosecution witnesses and documents.
13. PW-1 - Siddappa Gaibappa Chalawadi, who is the father in law of the accused was examined as PW-1. He has deposed in his evidence that accused is the husband of his daughter Malashri. About 10 years back, the marriage was solemnized between the accused and his daughter. Thereafter, she was residing in the house of the accused. They were doing coolie work. The accused has got two sons and one daughter. CW-6 is the son. The accused -8- CRL.A No. 100319 of 2018 grand mother, mother, his wife and children were residing in the house of the accused.
14. The accused was addicted to the alcohol and quarreled with his daughter for giving money for alcohol. Further, he has deposed that at about one and half year back, there was a fair in their village. The accused came along with his wife and children to his house, after fair he has returned to his village. His daughter and grand children were stayed in his house for two days.
15. After two days, his daughter along with her children had gone to their village. After two days, at about 1.00 a.m. his son PW-7-Gaibappa and PW-3 Chandavva has informed him through phone that the accused has murdered Malashri.
16. On the next day, at about 08.00 a.m., he had been to the house of the accused along with 30 persons. The dead body of his daughter was lying near the -9- CRL.A No. 100319 of 2018 kitchen. She had received cut injuries on her neck, thighs and shoulder. On enquiry of his younger sister, she told that the accused has committed the murder of his daughter. The blood was fallen on the spot and the chopper was lying on the floor. This is marked as M.O.No.1, then they lodged a complaint to police through PW-13 and he has put his LTM on Ex-P1.
17. Further, he has deposed that police have rushed to the spot and conducted the inquest panchanama and sent the dead body to the Government Hospital, Jamakandi. The police have taken photos on spot- Ex-P2 and P3. On the same day at 6.00 p.m., the dead body was handed over to him and he has conducted funeral in the village of the accused.
18. PW-2 - Sadasiv Bhagavant Chalawadi, Guest lecturer, Government First Grade Women college, Jamakhandi examined as PW-2 has deposed in his evidence that at about one and half years back one
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CRL.A No. 100319 of 2018 day at 2.00 a.m., PW-1 came to his house and informed as to the murder of his daughter by the accused.
19. He and villagers had gone to the house of the accused and found the dead body of the daughter of PW-1 near the kitchen room. She had received the cut injuries on her neck, chin, shoulder and two thighs. The blood was scattered on the spot. On enquiry of the younger sister of the accused Chandavva, she informed that after having dinner they slept at about 12.00 a.m. and they have heard the sound of screaming, then she saw the accused, who was coming from his house. On enquiry of the accused, he told that he has committed the murder of his wife as she refused to pay the money.
20. Then PW-1 along with Sagar went to the police station. Thereafter, police came to the house of the accused and conducted the inquest panchanama as per Ex-P4. At the time of inquest panchanama,
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CRL.A No. 100319 of 2018 police have taken the photo of the deceased as per Ex-P5. Thereafter, the police have sent the dead body to the Government Hospital, Jamakhandi for post mortem examination. The police have also conducted the spot panchanama in his presence as per Ex-P6 and prepared a sketch as per Ex-P7. Police have taken photo as per Ex-P3 and seized one kaudi, dupatta and chopper which are marked as MO.Nos.1 to 3, and then they went to the Government Hospital, Jamakhandi.
21. At about 4.00 a.m., the police summoned him and PW-2, to the police station. Police have seized the clothes worn by the deceased at the time of the murder and police have conducted seizure mahazar as per Ex-P8 and also seized M.O.Nos.4 to 7.
22. PW-3 - Chandavva Anil Hadimani has deposed in her evidence that the accused has addicted to alcohol and he used to quarrel with his wife for money for alcohol. At about one and half year back the accused
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CRL.A No. 100319 of 2018 along with his wife and children had gone to the fair at Galagali. After two days, the accused returned to his house. After two - three days from the date of fair, the wife of the accused and children returned to their home. After two days at about 09.00 a.m., Malashri invited her for dinner then she, her grand mother, accused and wife and children had completed their dinner.
23. Till 10.30 p.m., she and Malashri were talking in front of the house then she, her children and CW-6 - Sandeep slept outside the house. The accused, his wife and two children and his grand mother were slept towards inside of the house. Further, she has deposed that at about 12.00 p.m. she heard the sound of screaming of Malashri. On seeing, she found that the accused tried to came out of the house then she went inside and found the Malashri, who was lying on the floor. The blood was scattered. She had received the cut injuries on her neck, chin,
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CRL.A No. 100319 of 2018 hands and two thighs. On enquiry of the accused, he has stated that he has assaulted his wife for money, then they have informed this incident to the elder brother of Malashri i.e. Gaibappa. She has also identified the M.O.No.1 - Chopper, which was used for the commission of offence.
24. PW-4 - Shantawwa Mahadev Pannakanavar has deposed in her evidence that at about one and half year back, she came to know about the murder of the wife of the accused at 09.00 a.m. she went to the house of the accused and saw the dead body of the wife of the accused near kitchen. The police also came to the spot and taken photo. Malashri had received cut injuries on her neck, chin, both hands and two thighs. Police have conducted spot panchanamma as per Ex-P4. The police have also taken photos-Ex-P2 and P3.
25. CW-6 - Sandeep Sadasiv Potaraj, who is the son of the accused was examined as PW-5, he has deposed
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CRL.A No. 100319 of 2018 in his evidence that his parents and grand mother and his younger sister and younger brother are residing in the house of the accused. The accused was addicted to alcohol and he used to quarrel with his mother for money. Further, he has deposed that after having dinner at 10.30 p.m., he and his sister- in-law and his children slept outside the house and her grand mother and parents and his younger sister and younger brother slept inside the house. At about 12.00 a.m., he heard the sound of screaming of his mother and then he and his sister-in-law have found the dead body of his mother and on enquiry of his father, he told that he has killed his mother as she refused to give money. Her mother has received cut injuries on her neck, hands, chin and both thighs.
26. PW-6 - Bagawwa Hanamant Potaraj, the grand mother of the accused has deposed that she, her daughter Sommawwa, accused and accused wife Mallavva and her three children were residing in their
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CRL.A No. 100319 of 2018 house. The accused was addicted to alcohol and he used to quarrel with his wife for money whenever he consumed alcohol. At about 9.00 a.m. she, accused and his wife and children, Chandavva and her children had dinner. She and two children of the accused and Malashri slept inside the house. Chandavva and her children and Sandeep slept outside the house. When she was sleeping, she heard the screaming of the Malashri. The accused was standing near Malashri. Thereafter, the accused went outside the house, by that time, Chandavva and Sandeep entered the house. Chandavva has told that her elder brother has killed Malashri and then she found the body of Malashri and Chandavva has informed as to the incident through phone to Galagali Police Station. Thereafter, the police came to the spot and took the dead body to the hospital. This witness was treated has partly hostile witness and cross examined by the public prosecutor. This witness is also cross-examined by the accused during
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CRL.A No. 100319 of 2018 the course of cross-examination, she has stated that she has not witnessed the committal of murder of Malashri with chopper by the accused.
27. CW-9 Gaibappa Siddappa Chalawadi examined as PW-7 and he has deposed in his evidence that the deceased Malashri is her younger sister and the accused is her husband. The marriage was solemnized about 10 years back. The accused is having 3 children residing in Alagur village, residing along with accused, his mother, grand mother, wife and children. The accused was addicted to alcohol and he used to quarrel with his wife for money.
28. He has deposed that about one and half year back, the accused along with his wife and children came to Glagali for fair. On the next day, the accused had gone to his house. After two days, her younger sister and her children had gone to their house. After two days, at about 1.00 a.m. he has received a phone message from PW-3 - Chandavva that accused
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CRL.A No. 100319 of 2018 has killed his younger sister, then informed the same to his family members and on the next day at 8.00 a.m., they went to Alagur and found the dead body of Malashri near the kitchen and blood was scattered one chopper was also lying on the floor. Her younger sister has received cut injuries on her neck, hands and thighs. Chandavva has told him that the accused has killed Malashri for refusing to give money, then he went to the police station along with his father and Sagar and he has also deposed as to the identification of Chopper - M.O.No.1.
29. PW-8 - Sagar S/o. Basavva Kalimani has deposed in his evidence that at about one and half year back, there was a fair in their village. The accused and his wife and children came to the fair and on the next day of fair, the accused had gone to Alagur. After two days Malashri and her children had gone to Alagur. Thereafter, at about 2.00 a.m., PW-7 Gaibappa came to his house and informed him as to
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CRL.A No. 100319 of 2018 the murder of Mallavva by the accused, then they went to Alagur and found dead body of Malashri, which was lying near the kitchen of the house. She has received cut injuries on neck, hand, chin and thighs. She has also found the chopper, which was lying on the floor. On enquiry of the accused, he came to know that the accused has committed the murder of the Malashri as she refused to give money, then he has written the complaint at the instance of PW-1 as per Ex-P1 Thereafter, police came to the Alagur and conducted panchanama and took the dead body to the Government Hospital, Jamakhandi and he has identified M.O.No.1.
30. PW-9 - Kenchappa Shankareppa Sarennavar has deposed in his evidence that his house is situated at the village, same is vacant. The accused used to quarrel with his wife for money, whenever he has consumed alcohol. About one year three months back, one day at 12.00 a.m. he has heard the sound
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CRL.A No. 100319 of 2018 of screaming in the house of the accused and he along with 4 to 5 persons rushed to the spot and found the dead body of Malashri near the kitchen of the house. She has received cut injuries on her neck, chin, hands and thighs. Blood was scattered on spot. The chopper was lying on the floor. On enquiry of Chandavva, she told that the accused has committed the murder of Malashri for money, then they went away. On the next day, at 08.00 a.m., the police came to the spot and conducted panchanama and identified the M.O.No.1 - chopper.
31. CW-16 Dr. Vasappa Channappa Mudigoudar, the Medical Officer examined as PW-10. He has deposed in his evidence as to the conducting of post mortem of examination of the deceased and also issuance of post mortem report - Ex-P10 and he has also deposed that he has given letter of opinion as to the weapon as per Ex-P11.
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CRL.A No. 100319 of 2018
32. CW-17- Shankar Naik, Assistant Engineer, PWD, Jamakhandi examined as PW-11, he has deposed in his evidence that at the request of police he has prepared a sketch on spot as per Ex-P12.
33. CW-18- Sadashiv Bidari, PDO, Gramapanchayat, Alagur examined as PW-12. He has deposed in his evidence as to the issuance of certificate as per EX- P13.
34. CW-19- Sanjay Gururaj Albal, Assistant Executive Engineer, HESCOM, Ramdurga examined as PW-13. He has deposed in his evidence that police have requested him to furnish the particulars as to the RR number of the house of the Sadashiv Potaraj, Alagur and also they sought for supply of electricity for Alagur village between 19.04.2017 to 20.04.2017 till 02.00 a.m. and in this regard he has issued certificate - Ex-P14, in which he has stated that there is no RR number in the name of Sadashiv Potaraj.
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CRL.A No. 100319 of 2018
35. CW-20 - Saiyed Ali Sultansab Bilagi, H.C.No.615 of Jamakhandi Rural Police Station examined as PW-14 has deposed in his evidence that on 20.04.2017 at 10.30 a.m. he has deputed to handover the FIR pertaining to crime No.64/2017. Accordingly, he has handed over the FIR and complaint to the Court and on the same day, at 11.20 a.m. had submitted his report as per Ex-P15 in this regard.
36. CW-22 Sangamesh Paragode Tuppad, police constable has deposed in his evidence as to the submission of report given by the Medical Officer as per Ex-P16 to the Police Inspector.
37. CW-23 - Punadlik Maruti Patakar and CW-24 Sunilkumar Siddappa Nandeshwar - Police Inspector examined as PW-16 and 17 respectively. Both have deposed in their evidence as to their respective investigation and also filing of charge sheet against the accused.
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CRL.A No. 100319 of 2018
38. On re-examination of prosecution evidence and documents it is clear that alleged occurrence of offence is dated 19.04.2017 from 23.30 hrs to 23.59 hrs. The police have received the information on 20.04.2017 at 9.30 a.m. On the basis of complaint filed by P.W.1 - Siddappa Gaibappa Chalawadi, the Police Sub-Inspector, Rural Police Station, Jamkhandi, has registered the case in Crime No.64/2017 against the accused for the commission of offences punishable under Section 302 of IPC and submitted FIR to the Court as per Ex.P-17 on 20.04.2017 at 11.20 a.m. as endorsed by the learned Magistrate. Thereafter the IO has visited the spot and conducted inquest panchanama as per Ex.P-4. In Question No.13(a) it is clearly stated that accused has killed his wife.
39. On the same day the police have also conducted spot mahazar as per Ex.P-6 and prepared the rough sketch on spot as per Ex.P-7 in the presence of
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CRL.A No. 100319 of 2018 panchas. The police have also seized the chopper - M.O.1 at the time of conducting mahazar and one blood stained chocolate colour dubati and blood stained Kaudi. Police have also obtained Ex.P-10 - post mortem report in which doctor has opined that cause of death is due to hemorrhagic shock. Hemorrhagic shock is due to blood loss due to various injuries as mentioned in page No.4 in the post mortem report. That there are 19 injuries shown in Column No.4 of the post mortem report. The IO has recorded statement of witnesses and thereafter police have filed the charge sheet against the accused for the commission of offence punishable under Section 302 of IPC.
40. The material witnesses - P.W.3 - Chandavva Anil Hadimani and P.W.5 - Sandeep Sadasiv Potaraj have clearly deposed in their evidence that soon after hearing the sound of screaming of deceased they rushed to the spot and found that accused was
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CRL.A No. 100319 of 2018 standing on the spot and they also found the dead body of the deceased lying in the pool of blood near the door of kitchen and they have also seen the injuries on the neck, cheek, shoulder and both the thighs, which is supported with the injuries mentioned in the post mortem report.
41. P.W.3 - Chandavva Anil Hadimani, who is the younger sister of the accused and P.W.5 - Sandeep Sadasiv Potaraj son of accused have clearly deposed in their evidence that on questioning as to the death of deceased the accused has confessed that he has killed his wife as she has refused to pay the amount.
42. The statement given by the accused to P.W.3 and P.W.5 amounts to extra judicial confession, which is admissible in evidence. The accused has not placed any materials to discard the evidence of P.W.3 and P.W.5 and also the contents of inquest panchanama, spot and seizure panchanamas and contents of post mortem report.
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43. Considering the evidence placed by the prosecution, the trial court has convicted the accused for the commission of offences punishable under Section 302 of IPC and has properly appreciated the evidence on record. We do not find any ground to interfere with the impugned judgment of conviction and order of sentence passed by the trial court.
44. The learned Sessions Judge has not passed any orders as to the Victim Compensation Scheme under Section 357-A of Code of Criminal Procedure, 1973. In this regard, the Coordinate Bench of this Court has issued a Circular bearing No.4/2019 dated 23.09.2019. However, trial court has not complied the provisions of Section 357-A of Cr.P.C. The learned Sessions Judge has not assigned any reasons for non compliance of said Circular and the decision of Coordinate Bench rendered in Crl.A.No.770/2013 dated 29.08.2019.
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45. In the case on hand, P.W.1 - Siddappa Chalawadi, who is the father of deceased has clearly stated that deceased has got 2 sons and 1 daughter. P.W.5 - Sandeep Potaraj is the first son of the accused, who is the minor studying in 4th standard. P.W.1 has also deposed that the accused and deceased Malashri were doing coolie work and now the accused has been convicted and is in judicial custody. 3 minor children have lost their mother and there is no sufficient source of income to them to eke out their livelihood and also to bear their educational expenses. Considering the facts and circumstances of this case, it is just and proper to direct the Member Secretary to take steps to award compensation to the children of the deceased under Victim Compensation Scheme.
46. For the reasons aforestated and discussions, we proceed to pass the following:
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CRL.A No. 100319 of 2018 ORDER (1) Appeal is dismissed.
(2) Judgment dated 18.08.2018 passed by the I Addl. District and Sessions Judge, Bagalkot, sitting at Jamkhandi, in S.C.No.78/2017 for the offence punishable under Section 302 of IPC, is confirmed.
(3) Registry is directed to send the copy of this judgment to the Member Secretary, DLSA, Bagalkot, to take necessary legal steps to award the compensation to the children of deceased under Victim Compensation Scheme within 3 months from the date of receipt of copy of this judgment under intimation to this Court. (4) Registry is directed to furnish a copy of this judgment to accused through Jail Authorities free of cost and inform him of his right to appeal to the Hon'ble
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Supreme Court and transmit the trial Court records to the trial Court along with a copy of this judgment.
(5) Registry is directed to transmit the records to the jurisdictional court along with the copy of this judgment.
Sd/-
JUDGE Sd/-
JUDGE JY/DR List No.: 19 Sl No.: 3