Karnataka High Court
Mohan S/O Bhimababu Yalagandalavar vs The State Of Karnataka on 25 April, 2024
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CRL.A. NO.100604/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF APRIL 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.100604 OF 2022
BETWEEN:
MOHAN S/O. BHIMABABU YALAGANDALAVAR @
YANAGANNAVAR,
AGED 41 YEARS,
R/O: NEAR K E BOARD SCHOOL, NEAR GOLLAR ONI,
DURGADEVI TEMPLE, MANAKILLA, DHARWAD.
...APPELLANT
(BY SRI. S.P. KANDAGAL, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH P I HUBBALLI ASHOK NAGAR
P S HUBBALLI,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT
Digitally signed (BY SRI.M.B.GUNDAWADE, ADDL. SPP.)
by SAMREEN
AYUB DESHNUR
Location: HIGH
COURT OF THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
KARNATAKA
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER DATED 04-09-2021 AND ORDER OF
SENTENCE DATED 06-09-2021 PASSED BY THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING AT
HUBBALLI IN SESSIONS CASE NO.119/2018 CONVICTING THE
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CRL.A. NO.100604/2022
APPELLANT-ACCUSED FOR THE OFFENCES UNDER
SEC.504,506,323,302,307 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
22.04.2024 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant/accused has assailed the judgment of his conviction and order of sentence dated 04.09.2021 and sentenced for the offences punishable under Sections 323, 324, 307, 302, 504, 506 of Indian Penal Code, dated 06.09.2021 passed by the V Additional District and Sessions Judge Dharwad, sitting at Hubblli in S.C. No.119/2018 by preferring this appeal under Section 374(2) of Cr.P.C.
The brief and relevant facts leading to this appeal are as under:
2. Parties to this appeal are referred to as per their rank before the Trial Court for the purpose of convenience.
3. That, PW1 complainant by name Sujatha Mohan Enagannavar the wife of the accused filed a complaint on -3- CRL.A. NO.100604/2022 04.06.2018 at 5.45 p.m., before the Ashok Nagar Police Station, Hubballi alleging that, accused is her husband. In the wedlock between them Kumari Nikita and Master Ankit are born. In the house herself, her children, her parents and brother of the accused i.e., CW15 used to reside i.e., at H.No.130, near Jaikay college, Madhura Park, Santosh Nagar, Hubballi. Her husband i.e., accused is ex-navy staff. He retired about 08 years back. As accused suspected her fidelity therefore, because of persistent harassment to her both mentally and physically, thereby she started residing with her parents by leaving her husband. Accused used to reside at Dharwad with his parents. But used to visit her house continuously to cause harassment to her. She also filed a petition seeking divorce. Since then, accused started frequent visit to her house, cause lot of inconvenience to her. She tolerated all these activities of the accused.
3.1. It is the specific allegation of the complainant that, on 04.06.2015 at 1.15 pm when herself, her children, her parents, a friend of her daughter by name -4- CRL.A. NO.100604/2022 Pooja were sitting in the hall of their house, at that time, accused came on a Activa Scooter, parked the same in front of the house, entered the house and by seeing the presence of all the aforesaid persons abused the complainant stating that, 'you bitch would you want to divorce me, today I will finish all of you'. By saying so he went away. Thereafter by standing on the road started abusing the complainant in a filthy language. Because of this conduct of the accused, daughter of the complainant i.e., Nikita went towards her father and requested him not to abuse her mother. She asked him to come inside. But, accused assaulted his daughter. At that point of time, father of the complainant objected for the same. But, accused assaulted him also. When Nikita objected the conduct of the accused, with an intention to cause her murder, he draged her towards him, by taking out the knife from his pocket cut her left side neck and caused grievous injuries. Because of that, her daughter Nikita collapsed. By seeing the same, father of the complainant rushed to the accused and asked him why he assaulted -5- CRL.A. NO.100604/2022 Nikita his grand-daughter. To commit his murder accused also assaulted her father by using the same knife on his neck. The father of Pooja and another brought the Rickshaw and shifted the injured Nikita to the hospital. But for shifting the injured to the hospital also, accused strongly objected. As per the doctors advice injured was shifted to KIMS hospital but, Nikita died because of the injuries and the doctors declared her as brought dead. It is stated that, it is accused who has caused the murder of her daughter and attempted to kill her father. With these allegations a complaint came to be filed before the SHO of Ashok Nagar Police Station which was registered in Crime No.22/2018 for the aforesaid offences and thus, the criminal law was set in motion.
4. The Investigating Officer on taking of the investigation conducted the investigation, arrested the accused and produced him before the Court. Based upon his voluntary statement, he recovered the knife used by the accused, so also other articles under various panchanamas. After completion of investigation and after -6- CRL.A. NO.100604/2022 following all the procedure of investigation, he filed the charge sheet against the accused for the aforesaid offences.
5. To prove the guilt of the accused, prosecution in all examined eighteen witnesses in the shape of PWs.1 to 18 and got marked 59 documents as per Ex.P.1 to P.59 so also MO Nos.1 to 11 and closed prosecution evidence. On behalf of the defense Ex.D.1 came to be marked during the course of examination.
6. The learned Trial Court on hearing the arguments and on assessment of the evidence , found the accused guilty of committing the offences under Sections 504, 506, 323, 324, 302 and 307 of Indian Penal Code and sentenced him as under:
"ORDER The accused shall undergo rigorous imprisonment for life for commission of offence murder punishable u/Sec.302 of IPC and he shall pay a fine of Rs.20,000/-. In default of payment of fine, he shall undergo -7- CRL.A. NO.100604/2022 simple imprisonment a period of 3 (three) years.
The accused shall undergo rigorous imprisonment for 7 (seven) years for commission of offence punishable u/Sec.307 of I.P.C and he shall pay a fine of Rs.1 lakh. In default of payment of fine, he shall undergo simple imprisonment for a period of 3 (three) years.
The accused shall undergo rigorous imprisonment for 1 (one) year for commission of offence punishable u/Sec.323 of I.P.C and he shall pay a fine of Rs.1,000/- In default of payment of fine, he shall undergo simple imprisonment for a period of 3 (three) months.
The accused shall undergo rigorous imprisonment for 2 (two) years for commission of offence punishable u/Sec.504 of I.P.C and he shall pay a fine of Rs.5,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of 4 (four) months.
The accused shall undergo rigorous imprisonment for 5 (five) years for commission of offence punishable u/Sec.506 of I.P.C and he shall pay a fine of Rs.10,000/- . In default of payment of fine, he shall -8- CRL.A. NO.100604/2022 undergo simple imprisonment for a period of 1 (one) year.
In it ordered that all the sentences shall run concurrently."
7. Being aggrieved by this judgment of conviction and order of sentence passed by the Trial Court, the appellant/accused has preferred this appeal.
8. The learned counsel for the accused Shri. S. P. Kandagal submits that, in all eighteen witnesses are examined in this case. The motive for the crime was that the complainant wanted to give divorce to him. PWs.2, 6, 7 and 8 are the eyewitnesses. There are three sets of evidence collected by the prosecution. There is recovery of articles, medical evidence. But according to him, the evidences collected by the Investigating Officer, there are material contradictions, omissions and discrepancies which are not properly explained by the prosecution. It is his further submission that, the Trial Court has not properly assessed the evidence. According to him, it is not a murder but a culpable homicide not amounting to murder. -9- CRL.A. NO.100604/2022 Due to the decision of the complainant to give divorce to accused, in a sudden grave and provocation he has committed the offence. Therefore, according to him, in the alternative, in view of the facts brought on record, Section 304 part II of Indian Penal Code can be applied. It is submitted that, when the deceased Nikita resisted the act of the accused, he threw a water bottle and he has enraged but had no intention to kill anybody muchless the deceased his own daughter. It is his submission that, his brother had illicit relations with accused's wife (complainant) and his brother wanted to finish off the accused. This is all together different submission being made without any cross-examination.
8.1. According to him, Section 302 of Indian Penal Code is not sustainable. The behavior of the accused was abnormal and he was suffering from Schizophrenia. Therefore, he submits that no case is made out against the accused. In support of his submission, he relied upon the various evidence spoken to by the whiteness and the portion in the cross-examination directed to the witnesses.
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CRL.A. NO.100604/2022It is prayed to allow the appeal and set aside the impugned judgment.
9. Rebutting this submission, the learned Addl. State Public Prosecutor Shri, M.B.Gundawade submits that, there was a pre-meditation by the accused to commit the murder. Therefore, he brought the knife in his pocket and he wanted to kill. Accordingly, when the deceased resisted his act, he assaulted her by using knife. The evidence of PWs1 and 2 coupled with the evidence of injured PW7 and other evidence brought on record positively prove the case of the prosecution and improbabilize the defense of the accused. It is his submission that, it was a pre-meditated murder. There was no grave and sudden provocation. When accused brought knife, the mens-rea is very much clear. According to his submission, the Trial Court by considering the entire evidence has rightly concluded that, accused is the perpetrator of the crime and accordingly convicted for the offences. He submits to dismiss the appeal as devoid of any merits.
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CRL.A. NO.100604/2022
10. We have given our anxious consideration to the arguments of both the side. Perused the records in depth.
11. In view of the rival submissions of both the side, following points would arise for our consideration are:
i) Whether the Trial Court on the basis of the material before it was justified in recording conviction and consequently, sentencing the appellant to spend the rest of his life in prison?
ii) If so, whether the judgment of conviction and order of sentence passed by the Trial Court requires interference by this Court?
iii) What order?
12. Before embarking on the exercise of deciding the fate of this appellant, it would be apt to take note of certain principles relevant for a decision in this appeal. Needless to observe, such principles have evolved over the years crystallized into 'settled principles of law'. They are:
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"(a) Section 134 of the Indian Evidence Act, 1872, enshrines the well recognized maxim that the evidence has to be weighed and not counted. In other words, it is the quality of evidence that matters and not the quantity. As a sequitur, even in a case of murder, it is not necessary to insist upon a plurality of witnesses and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a conviction.
(b) generally speaking, oral testimony may be classified into three categories, they are
i) wholly reliable;
ii) wholly unreliable;
iii) neither wholly reliable nor wholly unreliable.
The first two category of cases may not pose serious difficulty for the Court in arriving at its conclusion(s). However, in the third category cases, the Court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.
(c) A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the Court has to be
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CRL.A. NO.100604/2022circumspect tin evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.
(e) Discrepancies do creep in, when a witness deposes in a natural manner after lapse of sometime, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance."
13. In a case of present nature it is a bounden duty of the prosecution to prove the homicidal death of the deceased. As per the evidence of doctor PW9 he conducted the postmortem on the dead body of the deceased and noticed the following injuries on the person of the deceased:
"I EXTERNAL APPEARANCE
1) Condition of on of 2)Wound:Positio 3) 4) Mark of ligature on subject tout emaciated, n, Size,characte Bruises,Posi neck dissection etc. decomposd, etc. tion, Size =, Nature Clothes and articles over the body: 1) Yellow coloured design half sleeve top with blue design border of sleeve and lower end. 2) Pink
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coloured inner top wear (slip). 3) White coloured bra. 4) Brown coloured underwear. 5) Black coloured pant, 6) Black coloured thread over left ankle. 7) Black coloured thread over right wrist,
8) Sliver coloured beaded chain over neck. All clothes soaked in blood at places.
The dead body is that of female aged about 17 years moderately build and nourished. Postmortem stiffening present all over the body. Blood stains present over neck, front of chest, abdomen, both hands and both feet at places.
External injuries:-
1) Obliquely placed chop wound measuring 20cms X 4cms X muscle deep present over left side of upper part of neck, just below the lower jaw extending from 1cm below middle of chin to left side of neck to 3cm below and back of left ear lobule. The upper margin is beveled and lower margin is undermined.
[II] CRANIUM AND SPINAL CANAL
1) Skull and 2) Membranes 3) Brain
Vertebrae
Scalp: Intact. Intact and Brain
congested Intact and
Skull: contested.
Intact.Vertebrae:
Intact.
Note: The spinal canal need not be
examined unless an indication of disease of injury exists.
[III] THORAX
1) Walls 2)Pleura 3)Larynx 4)Righ 5)Lef 6)Peri 7)Hear 8)Larg
ribs and e and t lung t t e
cartilage trachea Cardiu vessel
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CRL.A. NO.100604/2022
s Lung m s
Walls: Congeste Congeste Both the Heart: Healty right
Intact. d d lunce ere ventrile contains 80 cc of
Ribs and intact and clotted blood. Large
cartilage pail. Cut vessels:Intact.
s: Intact. section
exudes
minimum
blood stained
fluid
[IV] ABDOMEN
1)Walls 2) 3)Mouth 4) 5)Small 6)Large 7)
Peritoneum Pharynx Stomach intestine intestine Liver
and and its and its and its
esophagus contents contents contents 8)
Sleen
Intact Healthy. Healthy Healthy Filled with gas and Liver:
contains fecal meter
200 ml partially healthy Intact.
of intact
Spleen:
partially
digested Intact.
rice
meal
[V] GENITO URINARY ORGANS
1) Kidneys 2) Bladder 3) Organs of
generation, external &
Internal
Healthy Empty Healthy Healthy unterus
[VI] MUSCLES BONES AND JOINTS
1) Injury 2)Disease 3)Frature 4)Dislocation
deformity
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CRL.A. NO.100604/2022
Nil ---------- Nil --------
VII. MORE DETAILED DESCRIPTION OF
INJURY OR DISEASE, ETC
• Upper margin near mastoid process
is contused.
• On further dissection of External
injury No.1. The weapon after cutting skin, subcutaneous tissue and muscles of the neck has transected external jugular veins, nerves and external carotid artery and parotid gland.
• Thyroid cartilage and hyoid bone are intact.
• Injuries are antemortem in nature.
• As per investigating officers request cotton swab soaked in deceased blood is preserved and sent for blood grouping to Regional Forensic Science Laboratory through police.
• Time since death Brought dead of KIMS casualty Hubballi on 04-06-2018 at 02-30 p.m. ER No. 2018/077/017516.
• The above mentioned clothes and articles over the body will be dried, packed, labeled, sealed and handed over to the concerned police along with sample seal, signature and this report."
14. As per the opinion of the doctor, death was due to hemorrhage and shock as a result of injuries. Prosecution relies upon P.M. Report stated above as well as evidence of complainant eyewitnesses, inquest panchamam Ex.P.7 and other materials so as to prove the homicidal death of the deceased. On cumulative reading
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CRL.A. NO.100604/2022of all these documentary and oral evidence, it is proved that deceased Nikita suffered homicidal death. More so, defense also has not denied the homicidal death of the deceased.
15. PW.1 being the complainant and eyewitness to the said incident is specific about her relationship with accused. According to her, in the wedlock between herself and accused two children are born i.e., deceased Nikita and Ankit. The accused used to suspect her fidelity and used to abuse her in filthy language. Used to harass her both mentally and physically. He suspected that complainant is having illicit relation with his brother. Because of this persistent harassment by the accused, she left her matrimonial home along with her children and started residing with her parents at Hubbali. But even then accused by coming over there, used to harass and ill-treat her.
15.1. It is her evidence that, on 04.06.2018 in between 12.30 p.m. and 1.00 p.m accused came in a Scooter to her parent's house. At that time, herself, her
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CRL.A. NO.100604/2022children, her parents and her daughter's friend Pooja were sitting in the hall of the house. Accused by entering the house started abusing the complainant in a filthy language. At that point of time, deceased Nikita tried to console the accused and advised him not to abuse and asked him to go out. It is her evidence that, even then, accused by standing outside started abusing again. When her daughter Nikita went outside to ask her father, accused assaulted Nikita by using knife. She fell down and become unconscious. At that time, her father asked the accused that, why he has assaulted his grand-daughter, accused assaulted him on his neck. It is her evidence that, when the victim has taken to hospital she died on the way to the hospital and the doctors declared as brought dead. Thereafter, she lodged a complaint against the accused. Thus, it is her evidence that accused caused the murder of her daughter Nikita and attempted to kill her father.
15.1. According to her, on receipt of the complaint, after its registration police came to the spot and conducted
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CRL.A. NO.100604/2022the panchanama and seized MO No.2 and snapped the photographs as per Ex.P.4 to P.6 and she identifies the panchanama as per Ex.P.3.
16. PW1 is directed with extensive cross examination by the defense. The other aspects with regard to the insurance etc., are brought on record in the cross examination. On reading the entire text of cross examination, defense do not deny the presence of complainant in the house at the point of time so also the presence of accused at the scene of occurrence. It is the defense of the accused that, PW1 has not witnessed the assault by the accused on his daughter.
16.1. It is the further evidence of PW1 that, when accused assaulted her daughter she was inside the house, but states that, when she saw the accused, he was holding knife, therefore she says that, accused assaulted her daughter. It is suggested to PW1 that, accused has not brought knife to the scene of occurrence. She denies the said suggestion. All the suggestions with regard to the
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CRL.A. NO.100604/2022relationship between herself and brother of the accused is flatly denied by this PW1.
17. PW2-Pooja Ganesh Walmiki is the sterling eyewitness to the said incident of murder. She is specific that, on that day she was sitting in the house of the complainant and at that point of time, accused came there and abused the complainant in filthy language. She identified the accused as the father of her friend Nikita. So far as friendship between the deceased and PW2 is concerned, it is not denied by the defense.
17.1. It is the evidence of PW2 that, it was accused who assaulted the deceased Nikita by using knife when she enquired accused that why he abusing her mother. Throughout the cross examination she has maintained consistency with regard to the commission of the crime by the accused. Though searching and extensive cross examination is directed to PW2, but she has withstood the test of cross examination. Even the trend of cross examination directed to PW2 perfects the case of the prosecution. PW2 has given a graphic account of the act
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CRL.A. NO.100604/2022of the accused in assaulting the deceased by using MO no.1. She denied the suggestion that, she has not witnessed the said incident. Even she speaks about assault on the person of the father of the complainant. All these suggestions directed to her are denied by her. When suggestions are denied, they have no evidentiary value.
18. PW3-Shekar S/o. Pakirappa Adinavar is a inquest pancha to Ex.P.7, in whose presence the inquest panchanama was conducted and photographs at Ex.P.12 to P.15 were snapped. It is his evidence that, accused used to do galata by coming to the house of the complainant. The evidence of this PW3 is not denied by the defense though lengthy cross examination is directed to him. Therefore, evidence of PW3 can be accepted to the extent that, in his presence inquest panchanama was conducted and he identified the acts of the accused. To that extent his evidence is to be accepted.
19. PW4-Rajesh Arjunarao Shindhe, a social worker was called from the police station on 21.06.2018. In his presence certain articles were seized under Ex.P.17 by the
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CRL.A. NO.100604/2022police and photograph was taken. He identifies the said photographs. No effective cross examination is directed to this PW4 by the defense. From the evidence of PW4 it is proved that, panchanama Ex.P.17 was prepared by the police having seized certain articles from the packet so produced by the police. To that extent his evidence is to be accepted.
20. PW5-Anil Abdul Kurdusa Akki, a contractor of Hubballi was the seizure pancha. As per his evidence, at the instance of the accused MO no.1-knife was seized which was produced by the accused having concealed the same behind G.K. School. At that time, photographs were taken. Seizure panchanama was prepared as per Ex.P.24. So also vehicle used by the accused was seized under Ex.P.31 panchanama. The photographs are identified by this witness.
20.1. On reading the evidence of this PW5, throughout the evidence, of PW5 is consistent that, he was with the accused and police when MO no.1 was seized by them so also the Scooter. PW5 is directed with severe
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CRL.A. NO.100604/2022cross examination but, he is consistent in his evidence. Therefore, his evidence is to be accepted about seizure of MO no.1 and snapping of the photographs as per Ex.P.24 to P.31.
21. PW6-Nagappa S/o. Yallappa Kittur is none else than the father of complainant and injured in the incident. He is an eyewitness to the alleged assault by the accused on the person of Nikita. His evidence is corroborative in nature with that of the evidence of PW1 with regard to the said incident. He is specific that, accused assaulted deceased by using MO no.1 when she resisted the act of the accused. Though extensive cross examination is directed to this PW6 nothing worth is elicited. Certain admissions are taken in the cross examination but, they will not shake the basic case of the prosecution.
22. PW7-Ankith Mohan Enagannavar, is none else than the brother of the deceased and grand-son of PW6 and son of PW1 and accused. It is his evidence that, whenever accused come to the house he used abuse all the members of the house. He is a student by profession.
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CRL.A. NO.100604/2022It is his evidence that, as accused used to quarrel with PW1 (his wife) therefore, his mother decided to give a divorce to her husband. He is specific about the incident that has taken place on 04.06.2018. He noticed the injuries on the person of the deceased. He is an eyewitness to the incident. Though lengthy cross examination is directed to him, but throughout the cross examination, he is consistent about the accused who has committed the offence of murder of deceased.
23. PW8-Surekha Lakshmanarao Yadav is the neighbor of PW1 and she identified the accused as the husband of PW1. Whenever he used to come to the house of the complainant, she says that, accused used to have quarrel. It is her evidence that, on 04.06.2018 in between 12.30 p.m and 1.30 p.m., accused came on a two-wheeler and was abusing the complainant-PW1. At that time, she was watching the television serial. On hearing the sound, she came out of the house and noticed that, accused assaulted Nikita's left neck with knife. Because of that, Nikita fell down and became unconscious. Even accused
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CRL.A. NO.100604/2022assaulted the in-law of accused. On seeing the said incidents he went inside the house having scared off. Though PW8 is cross examined at length but she is consistent in her evidence that, whatever she has stated in examination-in-chief is true and correct. The suggestions so directed to her are denied by him.
24. PW9-Dr. Santoshkumar P., the doctor conducted the postmortem on the deceased and spoken in line with contents of postmortem report. The suggestion so directed to him that, he has given a false report etc., is denied by him. So there is no proper cross examination directed to this PW9.
26.1. From the evidence of PW9 it is very much clear that, he conducted the postmortem on the dead body of deceased and issued PM report showing the cause of death stated above.
25. PW10-Prasad S/o. Suresh is the scene of offence pancha to Ex.P.3 and photographs at Ex.P.4 to P.6. His presence at the spot when the panchanama was
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CRL.A. NO.100604/2022conducted as per Ex.P.3 is not denied by the defense. When there is no denial of conducting the panchanama and the presence of PW10 at the spot when the panchanama was prepared, cannot be doubted.
26. PW11-Somanagouda B. Patil, the Assistant Engineer prepared the sketch as per Ex.P.40 as per the request of the police. While marking these documents no little finger is raised by the defense. Except denial nothing is brought on record in the cross examination. To the extent of preparing the said sketch, his evidence is to be believed.
27. PW12-Ganesh Baburao Walmiki is the neighbor of complainant. He is specific that, accused used to abuse the complainant. Pooja the witness stated supra is his daughter. According to his evidence, when the incident took place, he was sleeping in his house. His wife made him to wake up. When he came out and saw, he noticed that, on the road Nikita had fell down. Accused was holding knife and stone in his hand. He was assaulting the father of the complainant on his neck and cheek. The
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CRL.A. NO.100604/2022father of the complainant was trying to beat the accused by holding the wooden plank. Accused was standing at a distance of 40 feet from the house of the complainant. He noticed the cut injury on the neck of deceased. He put the deceased in a Rickshaw. Took Nikita to the hospital near Gujarat Bhavan thereafter to KIMS hospital but on the way to the hospital on the lap of PW.12, Nikita died. The doctors declared her as brought dead.
27.1. He appeared at the scene of occurrence only when he came out of the house and noticed the injuries on the person of the deceased and also noticed holding of a knife and stone by the accused. He has been extensively cross examined but nothing worth is elicited from his mouth. So to the extent of he witnessing the accused holding knife and stone, his evidence is to be accepted.
28. PW13-Dr. Nitesh D. Jain, is a doctor who medically examined injured Nagappa Yallappa Kittur the father of the complainant. He noticed the following injuries sustained by the injured in the said incident so descried in wound certificate at Ex.P.41:
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"1) Lacerated wound of sixe 6cm X 0.5 cm over left side of neck, red in colour, bleeding, s-ray number 5497 dated 05.06.2018 reported by Radiologist, KIMS, Hubballi X-ray chest evidence of fracture.
2) The patient was admitted and treated under department of ENT, A unit and discharged or 12.06.2018."
28.1. According to his evidence, the said injured took treatment as an inpatient in the hospital. With regard to injuries so found he has issued the wound certificate as per Ex.P.41. He has produced the treatment summary report as per Ex.P.42. According to his evidence, the injuries so noticed by him must have been caused with hard and blunt object. He also identified wound certificate so issued by him as per Ex.P.41 he identified treatment summary containing 28 pages as per Ex.P.44.
28.2. It is his further evidence that, the Investigation Officer in this case, on 06.09.2018 sent the weapon called as knife which was broken into two pieces. That is one in hand portion another one is steel portion. He sought for opinion calling upon the doctor to give his opinion that,
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CRL.A. NO.100604/2022whether the injuries mentioned in the wound certificate at Ex.P.43 are possible by using the said knife. He physically examined the said weapon and issued a report as per Ex.P.45. He was of the pinion that, by using the said knife the injuries so mentioned in Ex.P.43 are possible. He identifies the said Mo no.1 as marked in this case. He also was of the opinion that, injury no.2 must have caused by wooden stick by using the hand portion of the said Mo no.1.
29. This PW13 is cross examined by the defense. Except the denial nothing is stated in his evidence on oath. As per his evidence, on taking the x-ray of the left chest and wrist with hand turn, he has not noticed any fracture. According to his evidence, injuries so sustained by the injured were simple in nature.
29.1. Presence of accused at the scene of offence is spoken to by the injured Nagappa and assault on him by the accused. There was scuffle in between accused as well as injured Nagappa. The fact of sustaining injuries by
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CRL.A. NO.100604/2022Nagappa, the said fact is not denied by the defense in material particulars.
30. PW14-R. G. Neelappagouda was the police constable at Ashok Nagar Police Station, at the relevant time. He has scribed the scene of offence panchanama marked at Ex.P.3. Even at the time of writing the panchanama the photograph is also taken. The said photograph is at Ex.P.31. It is his further evidence that, he snapped the photographs at Ex.P.19 to P.23. He identifies the certificate as per Ex.P.46. He has been cross examined at length but according to him, it is he who wrote the panchanama stated above and also snapped the photographs. No doubt he is a professional photographer, but in his evidence he has rightly stated about the writing of the panchanama and snapping photographs. Except the bald denial in the cross examination nothing worth is elicited so as to disbelieve his evidenced spoken in examination-in-chief.
31. PW15-Dr. Mahadevswamy Y. H., is the Assistant Director of RFSL Belagavi has spoken in his
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CRL.A. NO.100604/2022evidence that, in crime No.22/2018 he received 11 articles on 10.07.2018. On Scientific examination of the said 11 articles, he noticed the blood stains on the said articles. He found that, the said blood is of 'A' blood group. The all 11 articles were blood stained. To that effect he has issued report on 23.07.2018 marked at Ex.P.47. Before the Court when he was examined, he identified the said articles. He also identifies his report as per Ex.P.47.
32. PW15 being the Scientific Examiner was also cross Examined by the defense. He admits that, there was no impediment for him to mention the article no.2 as per Ex.P.47. He states that, articles no.2 is the knife which was sent in two parts (handle and bled) and also stated that, as he has mentioned the same in standard form. So far as steeling of bled as per MO no.1 is not disputed in a proper manner by the defense. According to the case of the prosecution, the blood stain so found belongs to the deceased and it matches its blood group. This submission is not denied by the defense in material particulars.
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33. PW16-Manjunath Basavaraj Yallakkanavar, the person who has typed the complaint on 04.06.2018 at the instruction of the complainant. He identifies the same as per Ex.P.2. Even he is the scribe of inquest panchanama as per Ex.P.7 and he wrote the panchanama at the instance of his superior officer. Even he has written the seizure panchanama as per Ex.P.24 under which the knife was seized at the instance of the accused. Thus, the evidence of this PW16 goes to establish that, he was assisted the Investigating Officer in preparing the inquest Panchanama, recovery panchanama and also has snapped the photographs. According to his evidence when PW1 came to the Police Station, one Ravi the brother of the accused accompanied her and mother of the complainant was also accompanied her. According to him, on seeing the dead body he wrote the contents of inquest panchanama. Except the denial in the cross examination nothing is elicited from the mouth of this witness so as to disbelieve his examination-in-chief. That means, he is the
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CRL.A. NO.100604/2022scribe of aforesaid panchanama and he has taken the photographs.
34. PW17-Manohar K Desai was the Assistant Sub Inspector of Ashok Nagar Police Station, at the relevant time and according to his evidence he got the complaint typed as per the information furnished by complainant through PW16. He registered the crime and set the criminal law in motion. He denied all the suggestions so directed to him.
35. PW18-Jagadeesh Channappa Hanchinal was the Police Inspector of Ashok Nagar Police Station at the relevant time. He conducted the investigation and filed the charge sheet against the accused.
36. On scrupulous reading of the cross examination so directed to this Investigation Officer, whatever the role being played by this witness during the course of investigation has been stated in his evidence. He has consistent in his evidence about the investigation done by him. In all criminal cases panchas are the authors of the
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CRL.A. NO.100604/2022panchanama and Investigation Officer are the superior of the investigation. To disbelieve the evidence of this police officer, except he denial in the cross examination nothing is brought on record.
37. In a case of present nature as stated supra, when the prosecution is able to establish about the involvement of the accused in the commission of the crime, it is for the accused nor to discharge his onus and proves his innocent. To prove the said fact except the denial in the cross examination nothing is brought on record in the cross examination.
38. It is settled principles of law by the Hon'ble Apex Court in catena of judgments that, to establish the commission of murder by an accused, motive is not required to be prove. In this case the motive for the crime is that, the accused was suspecting the fidelity of his own wife i.e, the complainant. He was suspecting that the complainant has having illicit relationship with his brother i.e., Ravi. Because of that, he has ill-treated, harassed the complainant after his retirement from naval service.
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CRL.A. NO.100604/2022According to the complainant, she reside with the accused for two years at Dharwad. Because of continuous, persistent harassment to her both physically and mentally, she took her children, started residing with her parents at Hubballi. Because of this persistent harassment by the accused by coming over to Hubballi also, she decided to give divorce to the accused. Having got knowledge about the decision of the complainant to give divorce to him, he again started harassing the complainant and used to abuse her in filthy language. Accused used to say that, he will kill the complainant. In execution of the said act, on that ill fated day, accused went to Hubballi along with a knife. When his own daughter Nikita resisted the act of the accused, caused grievous injuries on her neck by the said knife. She sustained grievous injuries. When she was taken to the hospital, it was declared that she brought dead. Thus, the intention of the accused can be gathered from his own conduct, even at the place of incident, at the time of offence, accused possessed the knife and was holding the knife. He had a knowledge that because of this
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CRL.A. NO.100604/2022conduct, the complainant may enrage herself as per the submission of the prosecution, and he wants to do something. That means, he has an intention to cause the injuries to the complainant who resist him is very much clear.
39. That means, the intention can be gathered from the conduct of the accused and the other surrounding circumstances prove that, this accused had an intention to cause the murder. When deceased resisted the conduct of the accused, he suddenly took out a knife from his pocket and assaulted her. Thus, this evidence is corroborated from the evidence of friend of deceased by name Pooja as well as injured Nagappa. Injured Nagappa being the father of the complainant and father-in-law of the accused resisted the act of the accused and when he resisted, accused also attempted to caused injuries on his neck.
40. As per the doctor certificate, he has sustained simple and grievous injuries. He has taken treatment in the hospital as an inpatient as per the documents so produced. So therefore, if all these factual features are
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CRL.A. NO.100604/2022put together, it can be stated that, the culpability of the accused in the commission of the crime is not ruled out. Having found from the oral evidence of PW1, 2, what was transpired on that ill-fated day has been spoken to by the witnesses in this case consistently.
41. There was indeed an attempt was made on the part of the accused that, all the witnesses are the interested witnesses who have witnessed the said incident and it was father who caused injuries on his own daughter. But the evidence of witnesses so examined in this case is otherwise. PW2 - Pooja cannot be termed as a chance witnesses because she is a neighbor of the deceased. Both were friends. Quite often she heard the noise of galata of the accused with the complainant and also she enquired the deceased that who is he. At that time the deceased has told that, he is her father and he is making galata.
42. The whole the testimony of PW2 is wholly reliable. It is clear from the evidence of PW2 and Nagappa that, they had an occasion to see the activities of the accused at the time of incident. The incident of murder has
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CRL.A. NO.100604/2022been occurred in front of the house of the complainant. That means, it was a broad day light murder of Nikita by the accused by her own father.
43. The important witnesses so examined by the prosecution clearly have stated in unequivocable terms that, it was accused who caused the murder of deceased. Even at the instance of the accused, the knife was recovered which was used by the accused in the commission of the crime. The recovery panchanama shows that, at the instance of the accused who led the police and the panchas to the place of concealment of the said weapon knife. It was accused who produced the same. To that effect panchanama was prepared and panchas have supported the case of the prosecution. When direct witnesses have stated about the involvement of the accused in the commission of crime and when connecting the link of seized knife was duly proved by the prosecution with legal evidence, then it goes without saying that, the accused is the perpetrator of the crime. This possibility cannot be ruled out.
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44. No doubt we find that there are some contradictions, omissions in the prosecution witnesses. The medical evidence also speaks with regard to the injuries being sustained by the deceased in the said incident. The minor contradictions so brought on record in the cross examination would not shake the basic case of the case of the prosecution. It is said that, mere defects in the investigative process by itself cannot constitute to ground for acquittal. It is a legal obligation of the Court to examine in each case the prosecution evidence dehors the lapses committed by the Investigation Officer to find out whether the evidence brought on record at all reliable and whether such lapses effect on finding out the truth. Being conscious of the above position of law and to avoid erosion of the faith and confidence of the people in the administration justice, this Court has examined the evidence led by the prosecution threadware. Investigation Officer has done his best. Therefore, the endeavor of this Court has reached the roots of the matter by analyzing and assessing the evidence on record. The appellant was
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CRL.A. NO.100604/2022duly found guilty by the Trial Court. The law is that, guilty does not escape clutches of law. Iinvestigating agency has brought sufficient material on record. The attending circumstances brought on record and the evidence placed on record by the prosecution through the evidence of PWs.1, 2 and Nagappa, the father of the complainant and also neighboring witnesses can be termed as wholly reliable evidence. There is a fair degree in the certainty in the case of the prosecution witnesses. That means, the prosecution case has to be accepted. In the Indian society, no woman would be keep mum by hearing the abusive words being used to their mother. It is true that, it is a settled principles of law that, the doubt cannot replace proof. Suspicions, however it is ground may be, it has no substitute of proof in criminal jurisprudence. Only such evidence is admissible and acceptable as is permissible in accordance with law. In this case, PWs.1 and 2 and also Nagappa the father of the complainant have spoken reliable, trustworthy evidence before the Court and their evidence is worthy of credence, that is
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CRL.A. NO.100604/2022based upon the proven fact beyond all reasonable doubt. Therefore, we have no hesitation in holding that, the prosecution is able to establish the guilt of the accused beyond all reasonable doubt. In a such cases plurality of the witnesses is not required. No particular number of witnesses shall in any case require for the proof of any fact.
45. It is said that every case has its own journey towards the truth and it is the courts role to undertake. Truth has to be found on the basis of evidence available for it. There is no role for subjectivity nor the nature of offence nor its performance. In this case journey of evidence or the journey towards the truth is based upon the evidence spoken to by the witnesses from the evidence of PWs1 to 18 so examined by the prosecution. The findings of the fact recorded by the Trial Court cannot be held perverse. The learned Trial Court have arrived at the conclusion ignoring or excluding the minor contradictions in the evidence spoken to by the witnesses. There is a ring of truth in the evidence spoken to by the
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CRL.A. NO.100604/2022witnesses. Therefore, we do not find any factual or legal error committed by the Trial Court in coming to the conclusion, that accused is the perpetrator of the crime and his involvement in the commission of the crime is not ruled out. Even there was an attempt to cause murder as per the evidence spoken to by the doctor Nagappa sustained injuries on his neck as per the wound certificate he was in the hospital for more than 21 days. There was an attempt to cause murder of Nagappa by accused by assaulting him on his vital part (neck) by using the knife. This fact is not denied. Trial Court has considered all these facts. It is prayed by the prosecution that accused is the real culprit and committed the offence. The charges leveled against him are proved beyond all reasonable doubt. Consequentially the aforesaid points are answered in favour of the complainant and against the appellant/accused.
46. In view of our discussion made above, based upon the evidence placed on record by the prosecution witnesses, the accused/appellant has utterly failed to
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CRL.A. NO.100604/2022prove his innocence in commission of the crime. Consequentially the appeal filed by the appeal is liable to be dismissed. Resultantly, we pass the following:
ORDER
i) Appeal filed by the appellant/accused is hereby dismissed.
ii) Judgment of conviction and order of sentence passed by V Additional District and Sessions Judge, Dharwad sitting at Hubballi in Sessions Case No.119/2018 dated 04.09.2021 and 06.09.2021 respectively, is hereby confirmed.
iii) Send back the Trial Court records along with copy of this judgment for compliance.
iv) Intimate the operative portion of the order to the Trial Court forthwith.
Sd/-
JUDGE Sd/-
JUDGE SMM