Karnataka High Court
Smt. Laxmi W/O Late. Raju Naik vs The State on 4 January, 2013
Author: H.N. Nagamohan Das
Bench: H.N. Nagamohan Das
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 4TH DAY OF JANUARY, 2013
PRESENT
THE HON'BLE Mr. JUSTICE H.N. NAGAMOHAN DAS
AND
THE HON'BLE Mr. JUSTICE V. SURI APPA RAO
Crl. A. No. 2611/2011 C/w.
Crl. A. No. 2621/2012
Crl. A. No. 2611/2011
BETWEEN :
Smt. LAXMI
W/o. LATE RAJU NAIK
AGED 40 YEARS
R/a. SAHYADRI COLONY
SIRSI, Tal. SIRSI
UTTARA KANNADA. ... APPELLANT
(BY Sri. S.B. DEYANNAVAR, ADV.)
AND :
THE STATE THROUGH THE
CIRCLE INSPECTOR OF
POLICE, SIRSI,UTTARA KANNADA
REP. BY THE LEARNED STATE
PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH. ... RESPONDENT
(BY Sri. V.M. BANAKAR, ADDL. SPP)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF Cr.P.C. WITH A PRAYER TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 30.08.2010
PASSED BY THE COURT OF SESSIONS JUDGE, FAST TRACT
COURT-I, UTTARA KANNADA, KARWAR IN S.C. No. 87/2008.
Crl. A. No. 2621/2012
BETWEEN :
PARASURAM
S/O. TIPPANNA GAJIPUR
AGE 36 YEARS
OCC. COOLIE
R/O. KURUBAGERI
TAL. MANAGAL
DIST. HAVERI. ... APPELLANT
(BY Sri. S B DEYANNAVAR, ADV.)
AND :
THE STATE - THROUGH CIRCLE
INSPECTOR OF POLICE
SIRSI, UTTAR KANNADA
R/B. SPP, DHARWAD. ... RESPONDENT
(BY Sri. V.M. BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE Cr.P.C. WITH A PRAYER TO SET ASIDE THE JUDGMENT
OF CONVICTION AND THE ORDER OF SENTENCE DATED
30.08.2010 PASSED BY THE SESSIONS JUDGE, FAST TRACK
COURT-I, UTTARA KANNADA, KARWAR IN S.C. No. 87/2008.
THESE CRIMINAL APPEALS COMING ON FOR FINAL
HEARING THIS DAY, V. SURI APPA RAO J, DELIVERED THE
FOLLOWING;
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JUDGMENT
These appeals are filed against the order of conviction and sentence passed by the learned Sessions Judge, Karwar, in Sessions Case No. 87/2008 whereby the learned Sessions Judge found the appellants guilty for the offences punishable under Section 302 and 201 read with Section 34 IPC and imposed a punishment of life imprisonment for the offence punishable under Section 302 read with Section 34 and IPC and one year rigorous imprisonment for the offence punishable under Section 201 read with Section 34 IPC. Aggrieved by the above order of conviction and sentence the appellants have preferred these appeals.
2. Brief facts of the case are as follows:
The deceased Raju married Smt. Lakshmi Kom Raju Naik (A1). Out of their wed lock they had two children by name Netra and Madhu. They were residing in Sahyadri Colony, near Water Tank, Sirsi. The wife of the deceased was leading adulterous life with Parashuram - accused No. 2. After coming to know about the adulterous relationship between accused Nos. 1 and 2 the deceased used to warn his wife. Therefore both the accused bore grudge against the deceased and hatched a plan to murder him. While so on 21.03.2009 at about 22.00 hours A1 offered alcohol to the deceased by mixing pesticide and after consuming the drink the deceased was rolling on the floor. Then accused No. 2 assaulted him with an axe on 4 his stomach resulting in his death. The children of the deceased and accused No.1 Netra and Madhu also helped them in the commission of the offence. Thereafter, in order to screen the evidence of murder the accused rapped the body of the deceased with saree, blanket and gunny bag and by digging a pit in the front room they buried the dead body. When the deceased Raju was not found after 21.03.2009 P.W.2 - mother of the deceased was enquiring accused No.1 about the whereabouts of her son and that accused No. 1 was replying that the deceased had been to Yellapur to attend coolie work. After few days P.W.2 observed foul smell coming from the house of her son. She therefore asked her daughter-in-law, accused No. 1 for which accused No.1 informed P.W.2 that the bad smell was due to the death of a rat in the house. Having noticed bad smell coming daily and the same being observed by the neighbours also, P.W.2 entered into the house of the deceased and noticed the dead body kept in the front room by covering the body with saree, blanket and gunny bag, after it was exhumed by the accused with an intention to dispose the same. After identifying the dead body as that of her son P.W.2 lodged a complaint with the police and the same came to be registered in crime No. 31/2008 for the offences punishable under Section 302 and 210 read with Section 34 IPC.
3. During the course of investigation the accused were arrested and their confessional statements were recorded. Based on the confessional 5 statement, the Investigating Officer recovered M.O.1 to M.O. 7. Thereafter the dead body was subjected to postmortem examination. P.W.4 who conducted the postmortem over the dead body of the deceased opined that the death of the deceased was due to injuries on the vital parts of the body and also under the influence of poison and alcohol. The material objects seized by the police were sent to forensic laboratory. After receipt of the forensic report and after completion of the investigation the police filed charge sheet against the accused for the offences punishable under Section 302 and 201 read with Section 34 IPC. After that the learned Sessions Judge framed charges under Section 302 and 201 read with Section 34 IPC both the accused pleaded not guilty.
4. In order to bring home the guilt of the accused the prosecution examined P.W.1 to P.W.10 and M.O.1 to M.O.7. Considering the oral and documentary evidence adduced by the prosecution the learned Sessions Judge found the accused guilty for the offences punishable under Section 302 and 201 read with Section 34 IPC and passed the above order of conviction and sentence.
5. In order to prove that the death of the deceased Raju was homicidal the prosecution examined P.W.4 - Dr. R.G. Hegde who conducted the postmortem on the dead body of the deceased and who issued Ex.P.6 - the postmortem report. The prosecution also relied on 6 Ex.P.13 to Ex.P.15 - the FSL reports. The prosecution further examined the Investigating Officer - P.W.10 who conducted inquest over the dead body of the deceased. P.W.4 has stated that he conducted the postmortem over the dead body of the deceased Raju on 11.04.2008 and he was of the opinion that the death of the deceased was due to vital injuries on the body and under the influence of poisonous alcohol. The FSL reports Ex.P.13 to Ex.P.15 produced by the prosecution further indicates that items 1 and 2 sent for analysis contains the pesticide mixed in alcohol and it further indicates the presence of alcohol and Organophosphorous. The viscera sent for FSL discloses the presence of Organophosphorous. The inquest report - Ex.P.1 and the evidence of the Investigating Officer coupled with the evidence of P.W.4 and Ex.P.6 - the postmortem report clearly indicates that the death of the deceased was homicidal due to the injuries over the body and consumption of poison with alcohol. Thus by the above evidence the prosecution could able to prove that the death of the deceased Raju was homicidal.
6. The next point for our consideration is, whether the accused are responsible for causing the death of the deceased Raju?
Admittedly there are no eye witnesses to the incident. The prosecution is mainly relying on the evidence of P.W.2 to P.W.8. All the witnesses supported the prosecution case. Out of the prosecution witnesses 7 examined, P.W.2 is none other than the mother of the deceased, P.W.5 and P.W.6 are his sisters, P.W.3 is the neighbour, P.W.7 is the owner of the house in which the accused resided for four months prior to the incident. In her evidence P.W.2 has stated that she is residing in another portion of the house whereas the deceased was residing with his wife and children in a separate portion. She also stated that accused No.1 developed illicit intimacy with accused No. 2 for which her son the deceased warned accused No. 2 not to visit the house. Inspite of that accused No. 2 used to visit their house. On 21.03.2008 her daughter Smt. Parvati - P.W.6 arranged a dinner in her house on the occasion of Sirsi Marikamba Fair. She had invited all her family members. After dinner they returned back to their respective houses. Since then her son was not found. Therefore she enquired accused No. 1 about her son and that she was informed that the deceased had gone to Yellapur for coolie work. For about 8 days accused No.1 did not give any information about the whereabouts of the deceased except telling that he was working at Yellapur. Thereafter P.W.2 visited the house of the deceased and found that the floor was in disturbed condition and uneven, she also noticed some bad smell coming from the house. When questioned accused No.1 informed her that a rat might have died in the house and as such there was foul smell. When she was searching the house of the deceased she had noticed the dead body in the corner of the house rapped in saree, blanket and gunny bag. Immediately she lodged a 8 complaint with the police as per Ex.P.5. She further states that she identified the dead body as that of her son based on the clothes worn by him and the paralytic left hand.
P.W.3 is the neighbour of the deceased. She also stated in her evidence about the illicit relationship between accused Nos.1 and 2. She has stated that on 22.03.2008 at about 05.30 a.m. when she had been to the water tank to collect water she noticed accused No.2 coming out of the house of accused No. 1. She also stated that she noticed foul smell coming from the house of the deceased and also did not notice the deceased in his house after they returned from the dinner on 21.03.2008. She further stated that after 20 days she has seen the dead body of the deceased Raju in his house.
P.W.5 and P.W.6 who are the sisters of the deceased also corroborated the evidence of P.W.3 about the illicit relationship between accused Nos. 1 and 2 and the deceased chastising accused No.1 not to continue the illicit relationship with accused No. 2 and also warned accused No.2 not to visit his house. They also stated that after coming to know about the murder of their brother they came and identified the dead body as that of their brother Raju.
P.W.7 is another important witness who has clearly stated in his evidence that both the accused resided in her house on a monthly rent of Rs.300/- per month two years back for four months. During the said period 9 she came to know that both are having illicit relationship and that accused No.1 is having her husband and children and therefore she forced the accused to vacate the house.
P.W.8 is the contractor who engaged the deceased for work. He has stated in his evidence that in the year 2008 about 8 days prior to the Marikamba festival the deceased had attended for coolie work and thereafter he did not attend the work. After some time he came to know that the deceased was murdered and the dead body was buried in his house.
7. Learned counsel for the appellants submits that there was 20 days delay in lodging the complaint with the police about the death of the deceased. Accused Nos. 1 and 2 were living separately and they have nothing to do with the death of deceased Raju and that a false case is filed against them.
8. Learned Public Prosecutor submitted that the accused are having illicit relationship. They conspired and murdered the deceased when he was objecting their illicit relationship. The police registered the case against the children of the deceased and accused No.1 also and they are facing trial in criminal Court in J.C. No. 7/2008. It is further submitted that basing on the confessional statements made by both the accused the liquor bottle, the pesticide bottles and axe - M.O.4 were recovered and they were sent for 10 analysis. The FSL report also clearly indicates that the axe contains the human blood and the liquor bottle contains Organophosphorous.
9. Admittedly there is a delay of 20 days in lodging the complaint before the police about the death of the deceased. The prosecution has clearly explained the delay in the lodging the complaint. In the evidence of P.W.2 - mother of the deceased has stated that she was often enquiring about the whereabouts of her son who was not found from 21.03.2008 after attending dinner at her daughters' place and she was being informed by accused No. 1 that the deceased had been to Yellapur to attend the coolie work. Therefore she was waiting for the arrival of her son from Yellapur. After some days she noticed foul smell emanating from the house of the deceased. She suspected some foul play. Again she enquired accused No. 1 about the foul smell. She was again informed by accused No. 1 that the foul smell was due to the death of a rat. Suspecting that the information given by her daughter-in-law might be false, P.W.2 visited the house of the deceased and noticed the dead body of her son rapped in saree, blanket and gunny bag and it was about to be shifted after exhuming from the pit in the front room. She also noticed the floor of the house is in disturbed position. She immediately lodged a complaint narrating the entire incident and also about the illicit relationship between the accused. After registering the case on the basis of the complaint given by P.W.2 the police started 11 investigation and recovered material objects on the basis of the confessional statement given by the accused. Considering the material placed, we hold that the delay has been properly explained by P.W.2, even otherwise, the same cannot be construed as abnormal.
10. During the course of examination under Section 313 Cr.P.C. accused No. 1 pleaded who was none other than the wife of the deceased created an alibi stating that she was not at all residing with her husband and children and she was residing with accused No.2 in another house. When accused No. 1 pleaded alibi it was for her to prove the same by cogent evidence. But she has not produced any kind of evidence to show that she was residing in some other house with accused No. 2. Thus by pleading alibi accused No.1 has clearly admitted her illicit relationship with accused No.2 when her husband was suffering from paralysis. Learned counsel for accused No.2 also admitted during the course of arguments before the Sessions Court about the extra marital relationship between accused Nos. 1 and 2. It is therefore clear from the admission of accused Nos. 1 and 2 that they are having extra marital relationship. Therefore the prosecution contends that the accused hatched up a plan to commit the murder of the deceased who was not allowing both of them to continue their extra marital relationship. The prosecution has clearly proved the motive on the part of the accused for committing the murder of the deceased. 12
11. After tracing the dead body of the deceased, P.W.2 lodged a complaint. The Inspector immediately came to the spot and shifted the body for postmortem examination. The fact that the dead body was found in the house of accused No. 1 clearly indicates that except the accused no body else had any access to the house therefore it is for accused No.1 to explain the cause of death of her husband due to injuries and poison. The Investigating Officer P.W.10 who has investigated into the offence has stated in his evidence that in the presence of P.W.1 he conducted inquest over the dead body of the deceased and recovered M.O.7 - clothes of the deceased which were identified by P.W.2 - mother of the deceased. On the basis of Ex.P.8 and Ex.P.9 - voluntary statements of the accused he recovered the weapons used in the commission of the offence in the presence of the pancha witnesses and recovery mahazar was drawn as per Ex.P.3 and Ex.P.3-B. According to him accused No. 1 produced M.O.2 pesticide plastic bottle and M.O.3 - empty whisky bottle and accused No. 2 produced the sickle. The children of accused produced M.O.5 spade which was used for digging of the pit. His evidence further reveals that at the time of drawing the spot mahazar M.O.6 - soil was recovered. The FSL report further reveals that the soil seized by the Investigating Officer which was sticking to the dead body and the soil collected from the burial place are one and the same. It is therefore clear by the evidence of the Investigating Officer that he immediately visited the spot of the offence, he noticed the 13 dead body of the deceased Raju with injuries and it was found exhumed from the pit and that the cause of death of the deceased was duly proved by the prosecution and that the death of the deceased was due to consumption of poisonous alcohol and due to the injuries on his stomach with an axe - M.O.4 and after his death his dead body was buried in the same house. When the deceased was not found in the house from 21.03.2008, A-1 being the wife did not care to know the whereabouts of her husband as she was conscious of the fact that her husband was already murdered. When P.W.2
- mother of the deceased was enquiring often about the whereabouts of her son, accused No. 1 was giving false information to her to make her believe that he had been to Yellapur to attend the work. Accused No. 1 has not produced any kind of evidence to prove that she was not residing in the house along with deceased at the time of the incident or prior to the offence. The evidence of P.W.2, P.W.3, P.W.5 and P.W.6 clearly indicates that accused No. 2 was often visiting the house of the deceased and continued his extra marital relationship with accused No. 1 inspite of the fact that the deceased had warned them not to continue their illicit relationship. The evidence of P.W.2, P.W.3, P.W.5 and P.W.6 was reliable, in the absence of any previous enimity with the accused, the question of falsely implicating the accused does not arise. Though there are some contradictions in their statements before the police they are trivial in nature and have not affected the case of the prosecution.
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12. It is settled principle of law that inference of guilt cannot be drawn unless all the facts and circumstances are found to be incapitable with innocence of the accused. The Apex Court in number of decisions had clearly held that when the dead body was found in a house it is for the inmates of the house to explain the cause of the death of the deceased and the nature of death. In the instant case accused No. 1 who is residing with her husband and children, who continued her extramarital relationship with accused No. 2 after committing the murder of her own husband, tried to screen the offence by placing the dead body in a pit and thereafter removing it after it emanated foul smell to dispose of the dead body. Meanwhile it was noticed by P.W.2 and other neighbours of the locality and the death of the deceased Raju was brought to light. According to the prosecution the motive for the commission of murder was that the deceased warned both the accused not to continue their illicit relationship. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled. Where prosecution relies upon circumstantial evidence proof of motive itself constitutes a link in the chain of circumstances. The Trial Court after appreciating the entire evidence on record rightly came to the conclusion that it is the accused and no one else has committed the offence of murder and in order to conceal the offence of murder kept the dead body in a pit and covered the same and gave false information to P.W.2 and to other neighbours that the deceased 15 had been to some other place to attend the work. The chain of circumstances proved by the prosecution clearly indicates that it is the accused and none other has committed the murder of the deceased. The Trial Court was therefore justified in convicting the accused for the offences punishable under Section 302 and 201 read with Section 34 IPC. Both the appeals are therefore dismissed confirming the order of conviction and sentence passed by the Trial Court.
(Sd/-) JUDGE.
(Sd/-) JUDGE.
LRS.