Karnataka High Court
T M Raju Alias Kencha vs State Of Karnataka on 31 July, 2014
Bench: Mohan.M.Shantanagoudar, C.R.Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31st DAY OF JULY, 2014
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE C.R.KUMARASWAMY
CRIMINAL APPEAL NO.1186/2011
BETWEEN :
T.M. Raju alias Kencha
Aged about 37 years
S/o Late Maniyaiah
Tharadele Village
Nanjangud Taluk
Mysore District.
..Appellant
(By Sri P. Nataraju, Adv.,)
AND :
State of Karnataka
By Kowlande Police Station
Represented by State Public
Prosecutor,
High Court Building
Bangalore-1.
..Respondent
(By Sri B.Visweswariah, HCGP.,)
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This Appeal is filed under Section 374 (2) Cr.P.C
praying to set aside the Judgment dated 13.10.2011
passed by the V-Additional District and Sessions Judge,
Mysore in S.C.No.192/2010 convicting the
appellant/accused for the offence punishable under Section
302 of Indian Penal Code, etc..
This Appeal coming on for hearing, this day, MOHAN
.M. SHANTANAGOUDAR., delivered the following:-
JUDGMENT
This appeal is filed by the convicted accused against the judgment and order of conviction dated 13.10.2011 passed by the 5th Additional Sessions Court, Mysore, in SC.No.192/2010.
The accused-appellant herein was charged and tried for the offences punishable under Sections 498A and 302 of IPC and Sections 3 and 4 of Dowry Prohibition Act.
2. Case of the prosecution in brief is that marriage of the deceased with accused was performed on 19.5.2005; out of the said wed-lock, a child is -3- born; at the time of marriage, accused demanded dowry of Rs.15,000/-, however parents of the deceased had paid Rs.5,000/- to the accused as dowry with an assurance that remaining amount of dowry will be paid after the marriage; husband and wife lived happily and amicably for some time after the marriage and thereafter accused started pressurizing the deceased to bring the remaining amount of Rs.10,000/-; on that pretext, accused used to torture the victim both physically and mentally.
It is further case of the prosecution that deceased had illicit relationship with Manjunath-PW.24 and on the said ground also there used to be quarrels between accused and the deceased; on the date of incident, i.e., on 27.4.2010 at 9.00 a.m., accused assaulted the deceased with chopper consequent upon which she died on the spot.
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After getting news of the incident in question, Dwarakish- PW.17 informed father of the deceased Mahadevaiah (PW.1) by going on a cycle to the village of PW.1 which is about 1 km. from the scene of offence; thereafter PWs.1 and 17 came back to the scene of offence and saw the dead body of the deceased; the first information came to be lodged by PW.1 as per Ex.P1 at 2.45 p.m. on 27.4.2010, i.e., on the date of the incident before the Sub-Inspector of Police-PW.25, who registered Crime No.63/2010 of Kowlande Police Station against the accused. PW.29- Inspector of Police laid the charge sheet after completion of investigation.
3. In order to prove its case, the prosecution in all has examined 30 witnesses and marked 45 Exhibits and 10 Material Objects. On behalf of the defence, neither document was marked nor witness was examined. As aforementioned, the trial Court on -5- evaluation of the material on record, convicted the accused for the offence punishable under Section 302 of IPC. However, accused was not convicted for the offences punishable under Section 498A of IPC and Sections 3 and 4 of Dowry Prohibition Act. It is relevant to note that trial Court has disbelieved the case of the prosecution that accused demanded dowry and that he tortured the deceased for bringing remaining amount of dowry and that was not the reason for murder.
4. Sri P.Nataraju, learned advocate appearing on behalf of the convicted accused-appellant herein taking us through the material on record and the judgment of the Court below, contends that trial Court is not justified in convicting the accused for the offence punishable under Section 302 of IPC; admittedly, deceased had illicit relationship with PW.24-Manjunath, who was residing in the house -6- opposite to house of the deceased; despite repeated requests and warnings, the said relationship was not put to an end; such matter was discussed before the elders of the Village including PW.16; however, such illicit relationship continued and ultimately PW.24 started pressurizing the deceased to go with him to Mysore for settling permanently; since the deceased did not agree for the same, she was done to death by PW.24. Thus, according to the learned counsel for the appellant, accused was innocent.
He further submits that accused himself went to Police Station to lodge the complaint after seeing the dead body of his wife, inasmuch as he was not in the house at the time of incident; the police without recording the complaint of the accused, apprehended him on 27.4.2010 itself and housed him in the Police Station. He further submits that at the most, accused can be convicted for the offence punishable under -7- Section 304 Part-II of IPC and not for the offence punishable under Section 302 of IPC.
Per contra, learned Government Pleader argued in support of the judgment of the trial Court by contending that trial Court is justified in convicting the accused for the offence punishable under Sections 302 of IPC, inasmuch as the accused has used chopper for commission of offence and the deceased has lost her life instantaneously in the house. According to him, defence theory that the accused is innocent is not supported by any material on record.
5. PW.1 is father of the deceased. On being informed by PW.17, he went to the scene of offence and saw the dead body of the deceased. He lodged the first information as per Ex.P1; PW.2 is the witness for spot mahazar at Ex.P3 and inquest mahazar at Ex.P2; PW.3 is the witness for inquest mahazar at Ex.P2 and seizure mahazar at Ex.P4. Under Ex.P4, -8- clothes of the deceased MO.Nos.6, 7, 8 were seized; PW.4 is the witness for seizure mahazar at Ex.P4 under which clothes of the deceased were seized; PW.5 is also another witness for Ex.P4; PW.6 is the witness for seizure mahazar at Ex.P5 under which clothes of the accused MO.Nos.9 and 10 were seized; PW.7 is mother of the deceased. She has deposed about the motive for commission of offence; PW.8 is the sister of PW.1. She has also deposed about motive for commission of offence; PW.9 is the witness for inquest mahazar at Ex.P2 and scene of offence panchanama at Ex.P3; PW.10 is also the witness for scene of panchanama at Ex.P3; PW.11 is the witness mahazar at Ex.P5, P6 and P7. Under Ex.P5 clothes of the deceased were seized. Under Ex.P6, the pawn chit pledging the gold ornaments in the shop of PW.20 is seized. Ex.P7 is the seizure mahazar relating to gold ornaments of the deceased from the shop of PW.20; PW.12 is the witness for Ex.P6, under which pawn chit -9- was seized; PWs.13, 14, 15 have turned hostile. They were supposed to depose about demand of dowry by the accused and payment of dowry by parents of the deceased; PW.16 is the Yajamana of the village (elder of the village). He used to conduct panchayats in the village. He has deposed about illicit relationship of the deceased with PW.24-Manjnath. He has turned partly hostile; PW.17 gave information to PW.1 after seeing dead body of the deceased; PWs.18 and 19 have deposed about extra judicial confession said to have been made by the accused before them; PW.20 is the Pawn-broker with whom accused had allegedly pledged the gold ornaments belonging to the deceased; PW.21 is the Taluka Executive Magistrate who conducted the inquest panchanama at Ex.P2; PW.22 is the doctor who conducted postmortem examination over the dead body. Ex.P27 is the postmortem report and Ex.P28 is the opinion of the doctor; PW.23 is the Secretary of Panchayat. He has
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produced Ex.P31, the Demand Register of the house wherein the incident has taken place; PW.24 has turned hostile. It is the case of prosecution that PW.24 had illicit relationship with the deceased. It is also the case of defence that PW.24 had got illicit relationship with the deceased; PW.25 is the Sub-Inspector of Police, who registered Crime No.63/2010 on the basis of the first information from PW.1 and conducted part of the investigation; PW.26 is the Head Constable who scribed the scene of offence mahazar. He has also assisted during investigation; PW.27 is uncle of the deceased, who has turned hostile; PW.28 is the woman constable who carried first information to the jurisdictional Magistrate; PW.29 is the Inspector of Police, who completed the investigation and laid the charge sheet; PW.30 is the Scientific Officer of FSL who produced Ex.P44, the report of the FSL in respect of certain articles sent for examination.
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6. There cannot be any dispute that death of the deceased is homicidal in nature. The defence also does not dispute that the death is homicidal in nature. Even the postmortem report at Ex.P27 and the evidence of the doctor who conducted postmortem examination (PW.22) make amply clear that death is homicidal in nature. As many as 6 external injuries were found over the dead body. After the postmortem examination, doctor has opined that the cause of death is due to coma as a result of hard and blunt trauma to the head sustained. Thus, it is clear that death is due to grievous injury suffered by the deceased on her head. Hence, it is more than clear that death is homicidal in nature.
7. Undisputedly, incident has taken place in the matrimonial house of the deceased. The first information is loged by PW.1-father of the deceased. The first information at Ex.P1 nowhere whispers about
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demand of dowry by the accused and payment of dowry by parents of the deceased. Ex.P1 merely states that accused used to suspect the fidelity of the deceased since 5 to 6 months prior to the incident and in that regard there used to be quarrels between accused and the deceased; on coming to know about the same from the deceased, PW.1 used to go to the house of the accused and deceased to pacify the quarrels by advising them suitably. It is further stated in Ex.P1 that at the time of incident, not only accused and deceased were present, but also, mother of the accused namely, Smt.Basamma and the child born out of wedlock between accused and the deceased were present. Thus, Ex.P1 makes it amply clear that accused and the deceased were living with mother of the accused and their child. Smt.Basamma is necessarily was an eye witness to the incident. The Investigating Officer has purposely omitted to record the statement of Smt.Basamma. If the police were to
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record the statement of Smt.Basamma, the things would have been fully clarified. She has not even been cited as a charge sheet witness. Absolutely no reasons are forthcoming as to why her statement is not recorded during the course of investigation. She would have been the first witness to the case on hand. Non- recording of the statement of Smt.Basamma (during investigation) who was very much present in the house gives rise to suspicion in the mind of Court about the case of prosecution.
8. More over, the first information does not reveal anywhere about demand of dowry by the accused and payment of dowry by the parents of the deceased to the accused. Thus, a make believe affair is created by the Investigating Officer subsequently during the course of investigation. In this view of the matter, the trial Court has rightly disbelieved the version of prosecution with regard to offences
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punishable under Section 498A of IPC and Sections 3 and 4 of Dowry Prohibition Act.
As aforementioned, the complaint specifically states about the illicit relationship of the deceased with PW.24 and there used to be quarrels between accused and the deceased in that regard. While drawing inuqest panchanama, the Taluka Executive Magistrate-PW.2 has recorded the statement of PW.1. Both PW.1 as well as PW.24 admit about the their statements recorded during the course of inquest. Ex.P2-inquest report makes it clear that PW.1 has stated before the Taluka Executive Magistrate that about six months prior to the incident in question, accused had quarreled with the deceased as well as with PW.24-Manjunath in respect of illicit relationship of the deceased with PW.24. PW.1 has also stated before the Taluka Executive Magistrate that he came to know about the said illicit relationship and in that
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regard there used to be frequent quarrels between the accused and deceased. PW.1 had gone to the house of accused and the deceased even on the previous night of the date of incident and he advised them to live amicably.
9. From the aforementioned facts, it is clear that even on the previous day of the incident in question, the quarrel took place between accused and the deceased. It is also admitted under Ex.P2 by PW.1 that he came to know about such illicit relationship from the villagers.
10. Ex.P26 is the requisition sent by the Investigating Officer to the Taluka Executive Magistrate on 27.3.2010 requesting him to conduct inquest panchanama. Ex.P26 also does not mention about demand of dowry by the accused and payment of dowry by the parents of the deceased. However, merely it mentions about illicit relationship of the
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deceased with PW.24 and in that regard the incident has taken place.
11. PW.16-Yajamana of the village (elder of the village) has admitted in the cross-examination that father of the deceased and parents of the accused had complained about illicit relationship of the deceased with PW.24. PW.16 also admits that people of the village had suspected PW.24 (Mr. Manjunath the paramour of deceased) in the matter of murder of the deceased. PW.29-Investigating Officer has deposed that PW.24 has absconded from the village up to 13.6.2010. Admittedly, the incident has taken place on 27.4.2010. Thus, it is clear that PW.24 has absconded for more then 50 days. There was no reason for him to abscond if he was to be innocent. PW.29- Investigating Officer further admits that statements recorded by him during the curse of
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investigation reveal that there was an illicit relationship between deceased and PW.24.
12. All the aforementioned factors clearly reveal that prosecution has not come out with true version inasmuch as the Investigating Officer has not recorded the statement of Smt.Basamma, mother of the accused. He has deliberately suppressed such statement. Since Smt.Basamma was inmate of the house, she could have been the first witness to the case of prosecution. Non-recording of her statement during the course of investigation gives rise to suspicion in the mind of Court about truthfulness or genuineness of the case of prosecution. Moreover, prosecution has tried to improve its case by bringing theory of demand of dowry by the accused and payment of dowry by the father of the accused. Such theory is subsequently got-up during the course of investigation. Prosecution has mainly projected the
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illicit relationship of the deceased with PW.24- Manjunath as motive for commission of offence. We also find that real motive behind the incident was the illicit relationship between the deceased and Manjunath. In that regard, there used to be frequent quarrels between accused and the deceased. Statement of PW.1 as found in Ex.P2 clarifies that even on the previous night of the incident, the quarrel took place between accused and the deceased and PW.1 had come to the house of accused and the deceased, pacified the quarrel by advising them suitably. Immediately, in the morning of the next day, the incident has taken place. Having regard to the totality of the facts and circumstances of the case, in our considered opinion, the offence may not fall under Section 302 of IPC, but may fall under Section 304 Part-II of IPC. Accused did not have any intention to commit murder of the deceased. However, he had a knowledge that his assault may cause death of his
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wife. Since accused could not tolerate the illicit intimacy of the deceased with PW.24 and as intimacy existed despite repeated advises by the elders of the village including PW.1 and PW.16, and since the deceased improve her conduct, incident has occurred. Therefore, it is a fit case to convict the accused for the offence punishable under Section 304 Part-II of IPC.
13. Accused is in custody since the date of his arrest. He has already undergone imprisonment for more than four years. Having regard to the totality of the facts and circumstances of the case and after hearing the learned Government Pleader as well as the learned counsel appearing for the accused, we are of the opinion that interest of justice will be met if the accused is sentenced to undergo imprisonment for five years. Since the accused is in prison for more than four years and he is a coolie by profession, no useful
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purpose will be served by imposing fine on him. Accordingly, the following order is made:-
i) The judgment and order of conviction dated 13.10.2011 passed by the trial Court convicting the accused for the offence punishable under Section 302 of IPC is set aside and modified to one under Section 304 Part-II of IPC.
ii) Accused-appellant herein is sentenced to undergo imprisonment for a period of five years.
iii) The period of imprisonment already undergone by the accused-appellant herein shall be given set off under Section 428 of Cr.P.C.
Appeal is allowed-in-part accordingly.
Sd/-
JUDGE Sd/-
JUDGE *ck/-