Karnataka High Court
Smt.Ronavva vs The State Of Karnataka, on 23 June, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JUNE 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL NO.100353/2016
BETWEEN
SMT.RONAVVA W/O MAJJURAPPA HIREMANI,
AGE: 42 YEARS, OCC: COOLIE,
R/O. ABBIGERI, TQ. RON.
... APPELLANT
(BY SRI.B.V.SOMAPUR, ADV.)
AND
THE STATE OF KARNATAKA,
REP. BY NAREGAL POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
DHARWAD BENCH.
... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., SEEKING TO SET ASIDE THE CONVICTION AND
SENTENCES DATED 21.11.2016 PASSED BY THE LEARNED
PRINCIPAL DISTRICT AND SESSIONS JUDGE GADAG IN
SESSIONS CASE NO.25 OF 2014 AND ACQUIT THE
APPELLANT/ACCUSED OF THE CHARGES LEVELLED AGAINST
HER.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:
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JUDGMENT
Questioning the legality and correctness of the judgment passed by the Principal District and Sessions Judge, Gadag in S.C. No.25/2014 dated 21.11.2016, the appellant - accused is before this Court.
2. We have heard the learned counsel Sri.B.V.Somapur for the appellant - accused and the learned Additional S.P.P. Sri.V.M.Banakar for the respondent - State.
3. The case of the prosecution in brief is that the appellant - accused and the deceased were wife and husband and they have begotten four children. P.Ws.2 and 3 are the sons, who also used to reside along with the parents. It is the further case of the prosecution that the appellant - accused used to quarrel with the deceased for the reason that the deceased used to object the appellant
- accused not to move outside the house. It is further case of the prosecution that on the date of the alleged incident, there was a quarrel. The complainant is the brother of the deceased, who is also residing nearby, came and pacified the quarrel and told them to have the food and sleep. It is :3: further case of the prosecution that in between 11:00 p.m. and 12:00, midnight, again the accused and the deceased quarrelled and accused by holding color of the deceased took him to the kitchen and thereby sitting on his chest, strangulated and caused the death. It is the further case of the prosecution that P.Ws.2 and 3 who are minors, immediately went to the house of P.W.1 and informed the same and he came and saw that already the deceased has breathed his last and the accused has committed the murder. Next day, he went to the Police Station and filed the complaint, as per Ex.P-1. On the basis of the complaint, a case has been registered in Crime No.8/2014. Thereafter, after investigation, the charge sheet was came to be filed. After committal, the Sessions Court took cognizance and secured the presence of the accused, who was on bail and after hearing, the charged was framed. Accused pleaded not guilty. She claims to be tried and as such, the trial was fixed.
4. To establish the case of the prosecution, prosecution got examined 16 witnesses, marked 18 documents and 6 material objects. During the course of :4: cross-examination of the witnesses, they have got marked Exs.D-1 to D-4. Thereafter, statement of the accused was recorded by putting incriminating materials as against the appellant. Appellant - accused denied the same. The accused has not led any defence evidence. After hearing the prosecution as well as the defence, impugned judgment of conviction came to be passed.
5. The main grounds urged by the learned counsel for the appellant are that the judgment of conviction and order of sentence is contrary to law, material placed on record. It is his further submission that Ex.P-1 - complaint goes to show that P.W.1 himself is an eyewitness to the alleged incident and he was present at the place of occurrence. But if his evidence is perused, he came to the spot only after the alleged incident and he himself has not become eyewitness and in that behalf, his presence at the place of the incident cannot be believable and his evidence is not acceptable. It is his further submission that there is delay in filing the complaint. Though the alleged incident has taken place on 27.01.2014 in between 11:00 p.m. and 12:00 midnight, but the :5: complaint has been registered on 28.01.2014 at about 08:30 a.m. and the FIR has been sent to the Jurisdictional Magistrate, on the same day at about 04:15 p.m., though the jurisdictional Court is at a distance of 13 kms and the Police Station is at a distance of 6 kms from the place of the incident. All these materials creates doubt in the case of the prosecution.
6. It is his further submission that no neighbours came immediately after hearing the galata though there are several houses situated at the place of the incident. If really incident has taken place, as contended by the prosecution, definitely the other witnesses could have come and they could have seen the galata. In the absence of such evidence, only on the interested testimony of P.Ws.1, 2 and 3, the Trial Court has convicted the accused. It is further submitted that the evidence of P.Ws.2 and 3 is also not acceptable. P.W.3 in his evidence clearly admitted the fact that he has been tutored by the Police and on the basis of the same, he has given the evidence before the Court. It is his further submission that in case of other witnesses, if the said witness have been tutored, then :6: under such circumstances, no credibility can be given to the said evidence. It is his further submission that the accused and P.Ws.2 and 3 were sleeping outside and after hearing the sound, she went inside and thereafter she noticed the death of her husband. Only because that there is a land dispute to the extent of 5 acres between the deceased and P.W.1 and one Andappa - P.W.4 and in order to grab the land, as the accused is obstructing that a false complaint has been registered against the accused, by taking advantage of death of the deceased. It is further submitted that the Trial Court without looking into the said aspect has erroneously convicted the appellant - accused.
7. Alternatively it is submitted that the evidence and the materials placed on record goes to show that there was a quarrel between the deceased and the accused and in that quarrel, without there being any intention or premeditation, the accused casually assaulted and as the deceased had consumed alcohol, he has breathed his last. In that light, he prays that if at all this Court comes to the conclusion that the accused has committed the offence, under such circumstances, the benefit of provision of :7: Section 304 - I or II of IPC has to be extended and whatever the period of custody undergone by the appellant
- accused, the same may be given set off. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment.
8. Per contra, learned Additional S.P.P. vehemently argued and submitted that the prosecution evidence clearly goes to show that the accused and the deceased used to quarrel frequently on every day and on the date of the alleged incident, the deceased and accused quarrelled and in the light, the accused dragged the deceased to the kitchen and there she strangulated and the said act of the accused has been seen by P.Ws.2 and
3. It is further submitted that when there are eyewitnesses to the incident and the evidence is also cogent and acceptable, then under such circumstances, the prosecution evidence has to be accepted and the judgment of the Trial Court has to be confirmed. It is his further submission that the death of the deceased has taken place in the house. Accused is also residing in the same house along with P.Ws.2 and 3 and in what manner death has :8: been taken place in the house has not been explained by the appellant - accused. In the absence of any such explanation, only inference which can be drawn is that it is the accused who has committed the alleged offence. The Trial Court after taking into consideration the evidence and the materials placed on record has come to a right conclusion and has rightly convicted the accused. There are no good grounds to interfere with the judgment of the Trial Court. The judgment of the Trial Court deserves to be confirmed. On these grounds, he prayed to dismiss the appeal.
9. We have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records, including the Trial Court records.
10. It is the case of the prosecution that the accused and the deceased used to quarrel everyday and deceased used to consume alcohol and on the date of the alleged incident also the deceased came by consuming alcohol and as usual, he was quarrelling and the accused :9: by holding the collar took him to the kitchen, sat on his chest, strangulated and caused the murder.
11. The main aspect the prosecution which has to establish is that the deceased Majjurappa died a homicidal death. To prove the case, the prosecution has got examined P.W.7, the inquest mahazar pancha to Exs.P-6 and P.W.9 the Doctor, who conducted autopsy over the body of the deceased. On going through the evidence of P.W.9, the Doctor who has conducted the autopsy over the body of the deceased, in his evidence, he has deposed that he has found as many as three injuries over the body of the deceased and has given the opinion that the cause of death is due to asphyxia due to throttling and has also given the postmortem report, as per Ex.P-9. On perusal of Ex.P-6 and the postmortem report - Ex.P-9, it is crystal clear that the deceased died a homicidal death. Even the learned counsel for the appellant - accused has fairly submitted that he is not disputing the homicidal death. In that light, the prosecution established the fact of homicidal death of the deceased.
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12. In order to prove that, it is the accused who has committed the said murder, the prosecution has relied upon the evidence of P.W.1 - the complainant and P.Ws.2 and 3, the children of the accused as well as the deceased and P.Ws.4 to 6.
13. On perusal of the evidence of P.Ws.4 and 6, they have been deposed in their evidence that the accused and the deceased were quarrelling frequently and many times they have also advised the deceased and the accused. Even the evidence reveals the fact that the accused is in the habit of moving in the night and the same was objected by the deceased. During the course of cross- examination of these witnesses, nothing has been elicited so as to discard their evidence.
14. Even P.W.1 has also spoken with regard to the quarrel between the deceased and the accused. Taking into consideration the said evidence, it reveals and it has been established that there was a quarrel between the accused and the deceased. On perusal of the evidence of P.W.1, he has deposed before the Court that one year : 11 : prior to the alleged incident, his brother and his wife used to quarrel and accused used to wander without preparing the food and deceased used to object and quarrel. He has further deposed that on the date of the incident, after finishing his work, he took the food and was sleeping and at about 00:00 hours, midnight, he heard the screaming voice from the house of the deceased and immediately he went there and consoled them and it is the accused, who dragged the deceased inside the house and went near the kitchen. Thereafter, he has come back. He has further deposed that subsequently the children of the deceased came and informed about the incident and he came and saw that the body was lying in a supine position and there was some marks over the neck and he came to know that the accused has committed the murder. Though this witness in the complaint has stated that he himself is an eyewitness, but during the course of cross-examination, he has changed his version and he has not stepped into the witness box as an eyewitness. But insofar as his presence immediately after the incident and that he noticing the injuries and he filing the complaint is not in dispute. So, in : 12 : that behalf, only on placing the evidence of P.W.1, no opinion can be formed by the Court whether accused has committed any offence or not.
15. P.W.2 is the son of the accused and the deceased. In his evidence, he has deposed that they are residing in the same house and his father used to go to the house by consuming alcohol everyday and the accused used to quarrel with him and even the accused used to assault and abuse him with filthy language. The beating was continuous process and when they used to quarrel, the complainant, the elder brother of the deceased, used to come and console and used to advise. He has further deposed that for some days they used to live happily and again they used to quarrel. He has further deposed that on the day of the alleged incident, himself, his brother, mother and father were there in the house and his father had come home by consuming the alcohol at about 09:00 p.m. and the accused quarreled with him and accused took the deceased by holding the collar and thereafter, she sat on the chest of the deceased and throttled his neck. On perusal of the cross-examination, the said witness has : 13 : withstood the cross-examination and nothing has been elicited so as to discard his evidence.
16. P.W.3 is also the son of the deceased and the accused. He has also reiterated the evidence of P.W.2, but during the course of cross-examination, he has admitted the fact that he has deposed before the Court as stated by the Police. In that light, if the evidence is produced in respect of P.Ws.2 and 3, the evidence of P.W.3 is not acceptable.
17. It is well settled proposition of law that the deposition of a child witness may require corroboration. But his deposition, if it inspires the confidence of the Court and there is no embellishment or improvement, the Court may rely upon the evidence of the child witness. It is also trite of the law that if the evidence produced before the Court so that the child witness has been tutored, then under such circumstances, the Court can reject his statement either partly or fully. This proposition of law has been laid down by the Hon'ble Apex Court in the case of : 14 : State of Madhya Pradesh vs. Ramesh and another reported in (2011) 4 SCC 786.
18. Keeping in view the ratio laid down in the above said decisions, on perusal of the evidence of P.W.3, it appears that he being a tutored witness and he has deposed before the Court as stated by the Police, then under such circumstances, the said evidence is not coming to enure the benefit of the prosecution. But on close scrutiny of the evidence of P.W.2, the same is cogent and it inspires the confidence of the Court that he has seen the alleged incident. It is also well settled proposition of law that the evidence of a child witness is not required to be rejected per se. As a rule of caution his evidence has to be scrutinized with care and if such evidence is convincing and qualitative, then under such circumstances, the Court may rely upon such evidence and convict the accused.
19. On perusal of the evidence of P.W.2 that itself clearly goes to show that he is an eyewitness and he was present in the house at the time of alleged incident. His evidence has also been corroborated with the evidence of : 15 : P.Ws.1, 4 and 6. It is not disputed during the course of evidence, that since one year, the accused and deceased used to quarrel and the deceased used to question her moving out of the house in the night hours and in that regard, they used to quarrel and even P.Ws.4 and 5 have deposed that they have advised while accused and deceased were quarrelling and in that light, if the evidence of P.W.2 is looked into, it appears that on the alleged date of incident, the quarrel went on and in that light, the accused took the deceased and throttled and caused death by sitting on the chest of the deceased and even this evidence is also corroborated with the evidence of the Doctor - P.W.9 he has also clearly deposed that the death is due to asphyxia and due to throttling. In that light, the evidence which has been produced clearly establishes the fact that it is the accused, accused alone has committed the alleged offence.
20. It is the submission of the learned counsel for the appellant - accused that the alleged incident has taken place in between 11:00 p.m. and 12:00, midnight, on 27.01.2014 and the Police Station is at a distance of 6 kms : 16 : from the place of the incident and the complaint has been registered on 28.01.2014 at about 08:30 a.m. It is his further submission that the evidence of P.W.1 also goes to show that one Basappa and complainant has informed the Police about the said incident.
21. On perusal of the evidence and materials placed on record admittedly the alleged incident has taken place in between 11:00 p.m. and 12:00 a.m. and thereafter, the people might have gathered in the village vicinity and that they have to confer about the death and other aspects. Thereafter, in the morning at about 08:30 a.m. the complaint has been filed. So there is no inordinate delay in filing the complaint and even no doubt can be created in this behalf that false implication of the accused. The delay will be the major aspect only if after deliberation and discussion, the accused has been falsely implicated, but on perusal of the records, no such suggestions have been made during the course of cross- examination. In that light, the said submission is not having any force and same is not acceptable. : 17 :
22. It is the submission of the learned counsel for the appellant that there is delay in submitting the FIR to the jurisdictional Court. The complaint has been registered on 28.01.2014 at 08:30 a.m. and the complaint and the FIR has been submitted to the jurisdictional Court at about 04:25 p.m. and the distance of the Court from the Police Station is 13 kms, but on perusal of the evidence of P.W.11 the Police Constable, who has carried the FIR, in his evidence he has deposed that the FIR and the complaint has been entrusted to him at about 09:30 a.m. on 28.01.2014 and he submitted the same at about 04:25 p.m. He has also further explained that on 28.01.2014, the learned Magistrate was in-charge of Nargund Court and the jurisdictional Magistrate was in Nargund. He went from Naregal to Ron and from Ron to Naragund and as such there is some delay. During the course of cross- examination of this witness, nothing has been elicited so as to doubt the evidence of this witness.
23. Be that as it may. Even on perusal of the evidence and the complaint, there is nothing brought on record for false implication of the accused. Though it is : 18 : contended by the learned counsel for the appellant - accused that there was some land dispute in respect of 5 acres of land in between P.W.1, deceased and cousin brother of P.W.1, Andappa (P.W.4) and in that light, they wanted to take the property and same used to be objected by the accused. In that light, the accused has been falsely implicated, but unfortunately the said theory putforth by the accused has not been brought on record effectively so as to accept the same. In the absence of any such materials and suggestions, the same is not acceptable and it is not having any force of law.
24. Though it is contended by the learned counsel for the appellant - accused that no neighbour came immediately after hearing the galata that itself creates a doubt in the case of the prosecution. But on perusal of the evidence, the accused and the deceased used to quarrel since more than one year and it is a continuous process in the family of the accused and the deceased and if everyday they were quarrelling and if it is routine, then under such circumstances, even though they might have heard the galata, they might have kept quite and the said : 19 : act of the neighbourers will not create any doubt in the case of the prosecution.
25. During the course of cross-examination, it has been suggested that the accused and the deceased were sleeping outside and by hearing some sound in the night, she went inside and there she has seen the dead body of the deceased. But sketch which has been produced at Ex.P-10 that also does not depict the fact that there was another door to the said house, where one can enter and cause the death of the deceased and even P.W.1 during the course of cross-examination has admitted that there is only one door and nobody can enter the house and that they were nurturing the enmity is also not brought on record. In the absence of any such material, no doubt can be created in this particular behalf, in the evidence of prosecution, some other person might have entered the house and committed the murder of the deceased.
26. It is rightly pointed out by the learned Additional S.P.P. that when accused and deceased were there in the said house and there is unnatural death of the : 20 : deceased and under such circumstances, it is the accused who has to come with explanation under what circumstances the deceased has died an unnatural death. When P.Ws.2 and 3 are the children and they themselves have come up before the Court and have deposed that it is the accused who has committed the murder of the deceased by sitting on chest and throttling, even during the course of cross-examination, they have withstood the cross-examination. In that light, the said submission is not acceptable, so as to create a doubt in the case of the prosecution.
27. At this juncture, the learned counsel for the appellant - accused contended that the alleged incident has taken place in a spur of moment, when the deceased has consumed alcohol and there was a quarrel in between the deceased and the accused and even that the accused was not having any intention or premeditation to cause the death of the deceased and in that light, the Trial Court ought to have convicted the accused for the offence punishable under Section 304 - I or II of IPC instead of Section 302 of IPC.
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28. We have carefully and cautiously considered the submissions made by the learned counsel for the appellant - accused.
29. In order to consider the case under Sections 304-I and II of IPC, the case has to be made out under exceptions No.1 or 4 of Section 300 of IPC. For the purpose of brevity we quote Section 300 of IPC and exceptions (1) and (4) which reads as under:
"300. Murder -Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly,--If its done with the intention of causing such bodily injury as the offender likely to cause the death of the person to whom the harm cause, or--
Thirdly. --If its done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--: 22 :
Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.- When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or cause the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
Firstly.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.: 23 :
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of act.
Exception 2.- xxx xxx xxx
Exception 3.- xxx xxx xxx
Exception 4.-Culpable homicide is not
murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault."
30. On going through exception 1 of Section 300 of IPC, culpable homicide is not murder if the offender while doing the act deprived of the power of self control, by grave and sudden provocation. In order to bring the case under the said exception accused has to show that he : 24 : deprived of the power of self control, by grave and sudden provocation which is caused by the person whose death has been caused.
31. Second aspect is in order to attract exception No.4, four requisites must be satisfied by the accused (i) it was a sudden fight (ii) there was no premeditation (iii) the act was committed in heat of passion and (iv) assailant has not taken undue advantage or acted in cruel manner.
32. On going though the above said discussion and on perusal of the evidence, there is nothing brought on record to show that the accused was provoked by the deceased and without there being any intention to cause the death of the deceased, the alleged incident has taken place.
33. We are conscious of the fact that if there is a sudden fight and there was no premeditation and the act was committed in a heat of passion and the accused has not taken undue advantage or acted in cruel manner, but on going through the evidence, it goes to show that the accused and the deceased used to quarrel on everyday : 25 : and on the date of the alleged incident, accused and deceased quarrelled and P.W.1 and others had also advised, but inspite of that, subsequently the accused has taken the deceased to the kitchen and sat on the chest and throttled. That itself shows that the accused was having intention to cause the death of the deceased and in that light, the contention of the learned counsel for the appellant to bring home the guilt under Section 304 - II of IPC is not attracted and the same is rejected.
34. We have carefully and cautiously gone through the submissions made by the learned counsel for the appellant and perused the record and the judgment of the Trial Court. The Trial Court after considering into the evidence and the materials placed on record has come to a right conclusion and has rightly convicted the accused. There is no perversity or legality in passing the impugned order as the impugned order deserves to be confirmed.
35. In that light, all the discussions held by us above, we are of the considered opinion that the appellant
- accused has not made out any case so as to interfere : 26 : with the judgment of the Trial Court. The appeal is devoid of merits and the same is liable to be dismissed. The appeal is dismissed.
The Trial Court is hereby directed to secure the presence of the accused by issuance of a warrant and issue the conviction warrant to serve the sentence.
Registry is directed to send back the Trial Court records forthwith.
Sd/-
JUDGE Sd/-
JUDGE Rsh