Karnataka High Court
The State Of Karnataka vs Ravi V P on 20 December, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL No. 278 OF 2018
BETWEEN:
The State of Karnataka
Through Circle Inspector of Police
Sullia Circle, D.K
Represented by
State Public Prosecutor,
High Court Building
Bengaluru - 01.
...Appellant
(By Shri.P.Thejesh, HCGP)
AND:
Ravi.V.P
S/o Puttayya Gowda
Aged about 55 years
R/o Neharu Nagara
Virajpete Taluk
Kodagu District - 571 218.
...Respondent
(By Smt.Archana K.M., Amicus Curiae)
This Criminal Appeal filed under Section 378(1) and (3) of
Code of Criminal Procedure, praying to set aside the impugned
judgment and order dated 04.04.2017 passed by the v
Additional District and Sessions Judge, D.K. Mangalore, sitting at
2 Crl.A.No.278/2018
Puttur, D.K., in S.C.No.55/2014, in so far as acquitting the
accused/respondent under Section 302 of IPC.
This Criminal Appeal coming on for Final Hearing having
been heard through Physical Hearing/Video Conference and
reserved for Judgment on 08.11.2023, coming on for
pronouncement this day, UMESH M ADIGA J., delivered the
following :
JUDGMENT
1. The State has preferred this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'the Cr.P.C.'), challenging the judgment dated 04.04.2017, passed by the learned V Additional District and Sessions Judge, Dakshina Kannada, Mangalore, sitting at Puttur (hereinafter for brevity referred to as the 'Sessions Judge's Court') in S.C.No.55 of 2014, for convicting the accused under Section 304 (part - II) of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC') instead of Section 302 of IPC.
2. Brief facts of the case of the prosecution are that, PW-1 Smt.Chanchalakshi W/o. Tejomaya has an 3 Crl.A.No.278/2018 agricultural land and house property at Alekkadi, Kodyakand of Murulya village of Sullya Taluk. PW-2 Monoppa has been serving as care taker cum coolie of the properties belonging to PW-1 stated above and he has been residing in a part of the house situated in the said land. PW-1 is permanent resident of Mangalore and whenever she has work at the agricultural land, she used to go to Alekkadi and if required, stay in the said house and after completion of the work she used to return to Mangalore.
3. PW-3 Devananda is brother of PW-1. On 29.12.2013 both accused and deceased i.e., Ravi and Kamala approached PW-3 seeking coolie work. PW-3 referred both of them to PW-1 to work in her house and land at Alekkadi after obtaining her consent. Accordingly both Ravi and Smt.Kamala went to Alekkadi on 29.12.2023 at about 4.30 p.m. and met PW-1 in the presence of PW-2. Both Ravi and Smt.Kamala agreed to work in the house and agricultural lands of PW-1. She told to them to keep their luggage in the shed situated near her house and stay in the said shed. PW-1 had also paid Rs.300/- to them for 4 Crl.A.No.278/2018 purchase of grocery items to prepare food for them. Both Ravi and Kamala went to Kaniyuru to secure groceries.
4. After completion of work at Alekkadi, PW-1 left to Mangalore.
5. Both accused and deceased went to Kaniyuru. They purchased grocery and came back to Alekkadi around 6.30 to 7.00 p.m. on 29th December 2013. PW-2 met them and enquired as to whether they had dinner and they told that they had dinner and they would sleep in the shed. Thereafter, PW-2 as usual went to his room situated inside the house of PW-1 and slept, around 8.30 to 9.00 p.m.
6. On 30th December 2013 at about 5.30 a.m. PW- 2 got up to feed the cattle. At that time, he saw that two persons were sleeping in the shed covering their body with bed-sheet. After putting the fodder to the cattle, PW-2 again went to sleep and slept in his room for some time. He got up around 6.15 a.m. to 6.30 a.m. and found that one had got up and another was still sleeping. He thought Smt. 5 Crl.A.No.278/2018 Kamala was still sleeping. He searched for Ravi and could not get him. Smt.Kamala covered her entire body with a bed-sheet. Thereafter, he called Kamala few times, but she did not respond. Since she was lady, PW-2 asked PW- 6, Smt.Asma to wake up deceased Kamala and PW-6 tried to wake-up her. After removing the bed sheet, covered on her face, she found that the said Kamala had sustained severe head injuries and lying in the pool of blood. She told the said fact to PW-2. PW-2 looking at the body found that she was dead and thought that the accused Ravi might have murdered her and left the said spot. Thereafter, around 7.00 a.m., he telephoned to PW-1 and informed about the incident and also requested her to come to Alekkadi. Accordingly, PW-1 came to Alekkadi after looking at the scene of incident, i.e., dead body of Smt.Kamala, lying in a pool of blood, sustaining severe bleeding injuries, informed to the police.
7. After receiving the information, Police Sub- Inspector/PW-17-Nagesh.K., went to spot of incident. He received the complaint given by PW-1 and sent the said 6 Crl.A.No.278/2018 complaint through PW-24/Kushalappa Gowda to Subramanya Police Station, to register the crime and bring the file for further investigation. Accordingly, PW-24 had taken the complaint to the police station and it was registered in Crime No.106 of 2013 for the offence punishable under Section 302 of the IPC and brought the file back to the spot of incident and handed it over to PW-17. Thereafter, as per instructions of the CPI, PW-17 had shifted the body to K.S.Hegde Hospital at Mangalore to keep it in cold storage of the mortuary. Accordingly, PW- 18 Mohan had taken the dead body and kept it in cold storage of K.S.Hegde Hospital mortuary.
8. The Circle Inspector of Police had investigated the matter and after conclusion of the investigation submitted the charge sheet to the J.M.F.C. Court, for the offence punishable under Section 302 of IPC. The learned Magistrate took cognizance of the case, and committed the case to the Court of Sessions for trial after supply of the copy of charge-sheet and enclosures to the accused as provided under Section 207 of Cr.P.C. The learned Sessions 7 Crl.A.No.278/2018 Judge, after receipt of the charge-sheet and its enclosures got it registered as Sessions Case No.55 of 2014.
9. The learned Sessions Judge after hearing both side had framed necessary charges punishable under Section 302 of the IPC. The accused pleaded not guilty and claimed to be tried.
10. The learned Sessions Judge held the trial and recorded evidence of PWs-1 to 30 and got marked Exs.P1 to P21 and MOs-1 to 10. After completion of the evidence for prosecution, the learned Sessions Judge recorded the statement of the accused under Section 313 of Cr.P.C. The accused did not offer defence evidence when called upon.
11. The learned Sessions Judge heard the arguments of both side.
12. The learned Sessions Judge had framed the following points for consideration:
1. Whether the prosecution is able to prove the homicidal death of Smt.Kamala ?8 Crl.A.No.278/2018
2. Whether the prosecution is above to prove the motive against the accused?
3. Whether the prosecution is able to prove beyond all reasonable doubt that accused and deceased joined as coolie workers to work in the garden land of CW-1 Chanchalakshi situated at Kodyakanda of Alekkady Village Murulya Taluk on 29-12-2013 and after their arrival, CW1 left them under the supervision of CW2-Monappa and gone to her house at Mangaluru, accused and deceased went to Kaniyuru to bring grocery items and returned to home at Alekkady at 7 p.m. slept, without food since the deceased refused to cook food and during night at 2.00 a.m. on 30-12-2013 accused made the deceased to wake up and asked her to cook food as he was hungry, for which deceased refused and scratched on his face, enraged by this act of her, the accused with intention to commit her murder, by holding her pigtail dashed her head against the ground and wall by crushing with force and assaulted with stick on her face, which resulted bleeding from her ear and nose and at 3.00 a.m. she succumbed to the injuries received by her in the hands of accused?
4. Whether prosecution is able to prove offence against accused u/s 302 of IPC beyond reasonable doubts?9 Crl.A.No.278/2018
5. What Order?
13. The learned Sessions Judge answered Point Nos.1 and 3 in the affirmative, Point No.2 in the negative and the learned Sessions Judge, on basis of the available materials on record came to a conclusion that the accused had no motive to murder deceased Kamala, who had live-in relationship with the accused and incident had taken place at grave and sudden provocation, when the deceased refused to prepare food for the accused and scratched the face of accused, and she was aggressor for the incident. Therefore, held that it was culpable homicide not amounting to murder and hence, convicted the accused for the offence punishable under Section 304 (Part-II) of IPC. After hearing both side, the learned Sessions Judge sentenced the accused to undergo rigorous imprisonment for a period of five years and to pay a fine of `5000/- for the said offence by its judgment dated 4th April 2017. The order of sentence was passed on 6th April 2017. The same 10 Crl.A.No.278/2018 is challenged by the State on the grounds mentioned in the appeal memo.
14. Notices were issued to the accused and accused did not appear. Therefore, bailable warrants were issued against him and accused was produced before the Sessions Court, who had committed the accused to the jail and thereafter, his presence was secured before this Court and this Court informed him that if he applies for bail, that would be considered. However, the accused did not offer bail and he is in custody. Since, accused is unable to engage counsel due to his poverty, Amicus Curiae is appointed to represent the accused.
15. We have heard the arguments of Shri.Thejesh, learned High court Government Pleader for the State and Smt.Archana.K.M., learned Amicus Curiae appointed by the Court representing the accused.
16. The learned HCGP vehemently contended that the prosecution witnesses have clearly and unequivocally have stated before the Court about the incident and death 11 Crl.A.No.278/2018 of Smt.Kamala. All the evidence stated by the witnesses clearly indicates that the accused with an intention to murder, severely assaulted on the deceased in the midnight, strangulated her and caused her death. It is true that there is no eye-witness to the incident, however, on the basis of circumstantial evidence, the prosecution is able to prove the guilt of the accused. The prosecution is able to prove that on 29.12.2013, both accused and deceased came to Alekkadi to work in the agricultural land belonging to PW-1; Both of them stayed in a shed given to them; The witnesses have also stated that deceased and accused have live-in relationship after death of husband of the deceased, she was living with accused and this fact is also stated by son as well as brother-in-law of deceased; They have also stated that accused as well as deceased were addicted to alcohol and both of them had frequent quarrel.
17. The learned HCGP further submitted that on the day of incident, in the midnight, accused requested the deceased to prepare food since he was feeling hungry and deceased refused to prepare the food. There was some 12 Crl.A.No.278/2018 altercation. Thereafter, accused held the hair of the deceased and with all the force, dashed her head to the ground because of which, she sustained grievous bleeding head injury and thereafter, strangulated her. He also assaulted her with MO-8 and caused bleeding injuries, she died. Thereafter, the accused covered her body with a bed- sheet and he was also sleeping next to her till the morning. At about 5.30 a.m., PW-2 witnessed both of them were sleeping when he got up. Thereafter, when he saw around 6.15 to 6.30 a.m., only one person was sleeping in the shed. PW-2 thought that she was Smt.Kamala and to wake her up, he called her. She did not respond, therefore, he called PW-6 to wake her up. When PW-6 came and removed the bed-sheet from her face, she found that Smt.Kamala had severe bleeding injuries on the head and she was laying in a pool of blood and she was dead. The accused-Ravi was absconding from the said place.
18. The learned HCGP has further submitted that, case was investigated by the investigating officer and collected sufficient materials to prove that the accused had 13 Crl.A.No.278/2018 committed murder of the deceased Kamala. The Sessions Judge accepted evidence of the prosecution witnesses, however, did not agree with the case of prosecution in respect of motive for the incident and held that there was no motive for the accused to murder Smt.Kamala. The incident had taken place due to grave and sudden provocation. Therefore, convicted the accused under Section 304 (Part-II) of IPC and sentenced with imprisonment for a period of five years and fine. The said finding is erroneous. Therefore, prayed to convict the accused for the offence punishable under Section 302 of the IPC.
19. The learned Amicus Curiae has submitted that there are no connecting circumstances to prove that the accused had committed the said crime. The case of the accused is completely denial and even he has stated in his written submissions that he did not come along with Smt.Kamala to Alekkadi. As per the prosecution, both the persons were sleeping during the night in a shed, which had no wall. Therefore, someone might have entered the 14 Crl.A.No.278/2018 said shed and murdered her. Except alleged 'last seen theory', there are no other circumstantial evidence or clinching evidence to connect the accused with the guilt. As per the statement of the accused recorded under Section 313 of Cr.P.C., after he was arrested, part of his skin was removed and it was misused by the investigating officer to connect accused with the death of Smt.Kamala. They used said skin and inserted in the alleged nail clippings of the deceased. Therefore, the scientific report, i.e., DNA report do not help the prosecution to prove the guilt of the accused or connect the accused with the alleged incidents. With these reasons, the learned advocate appearing for the accused respondent pleaded for acquittal of the accused.
20. The following points arise for our determination:
"Whether prosecution proved beyond reasonable doubt that in the intervening night of 29.12.2013 and 30.12.2013 the accused with intention as to murder Smt.Kamala banged her head to the ground, assaulted with MO-8 and strangulated her with the knowledge that such an act may likely to cause death and due to the said acts Smt.Kamala was dead and thereby accused 15 Crl.A.No.278/2018 had committed her murder punishable under Section 302 of IPC?"
The case of the prosecution is already stated in the above paragraphs.
21. Admittedly, there is no eye witness to the incident. The incident appears to be taken place during intervening night of 29.12.2013/30.12.2013 and the prosecution case is built up on circumstantial evidence.
The following circumstances needs to be proved by the prosecution to prove the guilt of the accused:
a. That on 29.12.2013, both the accused and deceased came to the house of PW-1 at Alekkadi, Kodyakand of Murulya village of Sullya Taluk to work in her house.
b. Both accused-Ravi and deceased Smt.Kamala had live-in relationship or were living together. Both deceased and accused stayed in the shed situated in the land and they were there in the said place upto 5.30 a.m., on 30.12.2013.
c. The accused left the spot of incident on
30.12.2013 around 5.30 a.m., and was absconding, thereafter from the place of incident.
16 Crl.A.No.278/2018
d. On the confession of the accused, his
shirt and weapon were seized, which were
containing blood stains and that was of the
deceased.
e. The DNA of skin and blood found in the
nail clippings of the deceased and DNA of the accused are the same.
f. The accused was last seen in the company of the deceased and he was identified by the relevant witnesses.
The prosecution examined PWs-1 to 4 and PWs-7 to 9, to prove some of circumstances (a to f) narrated above.
22. PW-1 on 30.12.2013 has filed first information; (complaint) brief facts stated in Ex.P1 are that on 29.12.2013, her brother, PW-3 Devananda had sent two Coolies by name Ravi and Kamala to work in the agricultural land belonging to her. Both of them came when she was in Alekkadi, Kodyakand of Murulya village. Both of them met her and, agreed to work in her field and she introduced both the persons to PW-2. She told both of them to stay in a shed situated next to her house. It is 17 Crl.A.No.278/2018 also stated that she had given him Rs.300/- to purchase the groceries and thereafter, at about 6.00 p.m., she returned to Mangalore. On 30.12.2013 at about 7.00 a.m., she received phone message from PW-2 about murder of Smt.Kamala and absconding of the said Ravi (accused). With these facts, she requested the Station House Officer (SHO) of the concerned police station to investigate the matter.
23. She has set the law into motion and on that basis, SHO of Sullya Police Station registered Crime No.106 of 2013 for the offence punishable under Section 302 of IPC. Accordingly, FIR in the prescribed form was prepared as per Ex.P12 and submitted the same to the jurisdictional Magistrate on 30.12.2013 at about 5.00 p.m.,
24. PW-1 during her evidence has stated that she was permanent resident of Mangaluru having ancestral property at Alekkadi, Kodyakand of Murulya village of Sullya Taluk. She had agricultural land and house property in the said land. PW-2 has been looking after the said property and residing in one of the rooms of her house at 18 Crl.A.No.278/2018 Alekkadi. Whenever she has work in agricultural land, she used to go to Alekkadi and stay there till completion of work in the house situated in the said place and after completion of her work, she used to return to Mangaluru. On 27.12.2013, she had gone to Alekkadi and stayed till 29.12.2013. On 29.12.2013, her elder brother PW-3, Devananda telephoned her and inquired her as to whether she needs service of coolies and she answered in the affirmative. PW-3 informed that he sent two coolies, by name, Ravi and Kamala and they would meet her; Accordingly, at about 4.30 p.m., on 29.12.2013 the said Ravi and Kamala came to Alekkadi and met her. She asked them to keep their baggage in the shed situated near her house and both of them requested her to pay some money to purchase groceries. Accordingly, she paid `300/- to Ravi and Kamala. Both of them went to Kaniyuru to purchase groceries and she left Alekkadi for Mangaluru.
25. PW-1 has further stated that on 30.12.2013 at about 7.00 a.m., PW-2, Monappa Pujary, over telephone informed her that on previous night, Ravi and Kamala had slept in 19 Crl.A.No.278/2018 the shed. On 30.12.2013, at about 5.30 p.m., he got up and put fodder to the cattle and at that time, he saw both of them were sleeping. Thereafter, he slept in his house for some time and woke up at 6.00 a.m. He came out of his house to do his regular work and found that Smt.Kamala alone was sleeping and her body was covered with a bed- sheet. He did not find Ravi in and around the land. He called Smt.Kamala to wake her up but she did not respond. Therefore, he requested his neighbour, PW-6, Smt.Asma to wake her up. PW-6 removed the bed-sheet covered on the face and found that Smt.Kamala had sustained bleeding injuries and was lying in a pool of blood. Therefore, he suspected that the said Ravi might have murdered her and left the said house without any intimation. He immediately telephoned her, informed about incident and requested her to come to Alekkadi. Accordingly, she left Mangaluru and came to Alekkadi at about 11.30 a.m. After looking at the dead body, she lodged complaint as per Ex.P1.
26. PW-1 has also stated that about two months after the incident, she received a notice from Tahsildar of 20 Crl.A.No.278/2018 Taluk for Test Identification Parade (for short, hereinafter referred to as 'TIP'). Accordingly, she went to prison at Mangaluru. The Tahsildar showed accused in the group of six to seven persons and she identified the accused and signed the documents relating to identification of the accused. She also identified the accused in the open Court.
27. PW-1 was thoroughly cross-examined and nothing is brought out to disregard her evidence. Most part of the cross-examination appears to be not relevant. As per the case of the prosecution, both accused as well as deceased came to Alekkadi to do coolie work. They were not called for a recruitment on permanent basis. Under such circumstances, in the normal circumstance, no person would enquire in detail about the history of such persons or collect documents regarding their identification etc. Only on that basis, one cannot conclude that the accused did not go to Alekkadi.
28. In the cross-examination of PW-1, defence of accused was stated that Smt.Kamala alone came to 21 Crl.A.No.278/2018 Alekkadi and accused did not accompany her. PW-1 gave Rs.300/- to Kamala for purchasing groceries and while bringing the groceries, Kamala brought another person along with her and said person murdered Kamala. She deposed falsely to avoid difficulties due to death of Kamala. The said suggestion were denied by the PW-1. Nothing was brought-out to probablise said facts in her evidence.
29. It appears to be surmise or assumptions of accused. It is defence of accused that Smt.Kamala alone went to house of PW-1 and accused did not accompany her; then how could he got the information that while returning from Kaniyuru she brought another person with her and he murdered her? While answering to question No.3, recorded under Section 313 of Cr.P.C., the accused himself admitted that "he along with Kamala, went to the house of PW-1. PW1 paid Rs.300/- to purchase groceries. Thereafter, she left for Mangaluru." The said fact indicates that the said suggestion or the case made out during the cross-examination of PW-1 is an imagination and contrary to the say of accused. Hence, on the basis of the said 22 Crl.A.No.278/2018 suggestions, evidence of PW-1 cannot be disbelieved. Her evidence helps the prosecution to prove that accused and deceased came to Alekkadi on previous evening of the incident and PWs-1 and 2 could see them.
30. PW-2 in his evidence has corroborated the evidence of PW-1. He has also narrated about facts stated by PW-1 regarding coming of deceased and accused to Alekkadi on 29.12.2013 at about 4.30 p.m.; receiving `300/- from PW-1 to purchase the groceries and going to Kaniyuru to bring groceries and returning thereafter to Alekkadi. PW-2 has stated that he met both of them about 8.30 p.m. and talked with them. Thereafter, both of them went to the shed situated in the land of PW-1. In his evidence, he has also narrated in detail about the injuries sustained by deceased and visit of police to the spot; and removal of the bed-sheet that was covered the dead body. He has also stated about the dress worn by the deceased and the other ornaments worn by her. He has also stated about the seizure of the articles by the police, before conducting the inquest. He has also witnessed the said 23 Crl.A.No.278/2018 mahazar along with others. He has also stated that along with panchas, he opined that probably the accused had strangulated the deceased, banged her head to the wall and floor and murdered her. He identified M.O.Nos.1 to 3, which were seized from the spot of incident. He has also stated about the identification of the accused during 'TIP' conducted in the presence of the Tahsildar at Mangaluru.
31. In the cross- examination also, PW-2 has stated in detail about the incident. He has stated that on 29.12.2013, at about 8.30 p.m., before he slept, he met deceased and accused and enquired with them as to whether they had dinner and they told that they had dinner at Kaniyuru and nothing is brought out to disbelieve the evidence of PW2.
32. PW-3, is elder brother of PW-1. In his evidence, he has stated that on 29.12.2013, deceased and accused came to his house and requested him to provide some work. The accused introduced deceased as his wife. He told to them that "he had no work to engage them 24 Crl.A.No.278/2018 however, his elder sister has land at Alekkadi, Kodyakanda of Murulya village, if they are ready to work in the said land, then, he would ask her and tell them." Thereafter, he contacted PW-1 and she also agreed to engage the accused and deceased to work in her property. Accordingly he told them and both informed him that they would go to Alekkadi.
33. PW-3 has further stated that PW-1 informed him on the next day about death of Smt.Kamala and absconding of accused. He received notice from Tahsildar. Accordingly, he went to prison at Mangalore wherein test identification parade was conducted and he identified the accused and signed a document after completion of 'TIP'.
34. In his cross-examination, he has stated in detail about the history of deceased and her husband Babu. He has also stated that prior to the incident, deceased had worked in his house. She and her husband Babu were working at Nujadi near Kondyakanda, in his maternal uncle's house. In his cross-examination accused suggested denying facts stated in the examination-in-chief and also 25 Crl.A.No.278/2018 suggested the defence of accused, PW-3 denied said suggestions of accused. Nothing is brought out to discard his evidence. His evidence corroborates the evidence of PW-1. His evidence helps the prosecution to prove relationship of accused with deceased and also he had sent them to the house of PW-1 and also identity of accused.
35. PW-4 is the driver of a taxi. According to him, on 30.12.2013 at 5.30 a.m., an unknown person travelled from his taxi from Ninthikallu to Putturu. The said person paid taxi charges of Rs.100/- and he was in hurry. He could remember the face of the said person. He was also called to Jail at Mangalore for test identification parade, wherein he had identified the accused who travelled in his taxi on 30.12.2013 at about 5.45 a.m. In his cross-examination also, he has elaborated the said facts and nothing is brought out to discard his evidence. He has also explained how he could remember the identity of the accused though he was unknown person prior to 30.12.2013. 26 Crl.A.No.278/2018
36. PW-5 is the driver of an Auto-rickshaw, who was running an Auto-rickshaw on hire at Holalambe. In his evidence, he has stated that on 30.12.2013 at about 10.00 to 10.30 a.m., he dropped Ravi (accused) to Holalambe, by his Auto. PW.5 has stated that he is familiar with accused and accused was serving in and around Guthigaru. On that day, initially accused told him to take him to Dev Colony from Holalambe and while going toward Holalambe, on the way he stopped vehicle met with one Krishna. Accused spoke with Krishna and thereafter told him to drop at Holalambe. Accordingly, he dropped him to Holalambe. Thereafter, accused boarded a bus going towards Sullya. PW-5 also stated that on the next day he came to know that accused murdered Smt.Kamala at Alekkadi. He has also stated about participating in 'TIP' in prison at Mangalore on 29.03.2014 and identified the accused, so also, signing on a document. He identified the accused in the Court and also stated that accused and the deceased were living as husband and wife in Deva Colony. 27 Crl.A.No.278/2018
37. In the cross-examination, he has elaborated his evidence given in examination-in-chief. There are no reasons to disbelieve or discard his evidence. It is not brought out in his cross-examination that he had any enmity against accused to give false evidence.
38. PW-7 is the son of the deceased from her first husband. In his evidence, he has stated that he identified the dead body of his mother on 31.12.2013 in K.S.Hegde Hospital's Mortuary. His father died when he was very young. Thereafter, his mother left him in the custody of his grand parents and went along with the accused. The accused and deceased were residing at Choma Devachalla village in Deva Colony. Both of them were addicted to alcohol, therefore, his grand parents did not permit the deceased to stay in their house.
39. PW-7 has also stated that on 31.12.2013 at about 10.00 a.m., he was going towards Guthigaru. The accused was going in an auto rickshaw. Accused got down from the Auto-rickshaw, met him and informed him that 28 Crl.A.No.278/2018 "his mother (Kamala) was dead". The accused was in the habit of falsely and often telling him "that his mother was dead". Therefore, he did not take the information seriously. After talking to him, accused went towards Holalambe in the said Auto-rickshaw. On the very same day, in the evening, the police came to his house and informed the murder of his mother. He identified the accused, in the Court. He has also stated that he saw the dead body of his mother at mortuary and identified it.
40. In his cross-examination, he has elaborated the above evidence and relationship of the deceased as well as the accused. It was suggested to him that the accused and the deceased had no relationship, which was denied by him. PW-7 is none other than the son of the deceased. It is not brought out in his cross-examination that he had any enmity against the accused. It appears his grandparents as well as PW-7 did not take care of the deceased since she was addicted to bad vices and having live-in relationship with the accused. Under those circumstances, there was 29 Crl.A.No.278/2018 no reason for PW-7 to depose falsely before the Court and his evidence is believable.
41. PW-8 is the brother-in-law of the deceased (younger brother of husband of Smt.Kamala). He has also stated about the identification of the dead body of Smt.Kamala. Her relationship with the accused and both of them are residing together at Deva Colony. He has also stated that the accused and deceased were addicted to liquor. Therefore, they did not permit Smt.Kamala to stay in his house. The said PW-8 is none other than brother-in- law of the deceased. PW-7 appears to be residing with him. Under such circumstances, it is natural that when he came to know about the death of his sister-in-law, he might have gone to the hospital and paid his last respects. His evidence is reliable.
42. PW-8 has stated that he saw the dead body of Smt.Kamala in the mortuary. He also identified accused in the Court.
30 Crl.A.No.278/2018
43. PW-8 withstood the cross-examination and denied the suggestions of the accused and denied that he did not go to mortuary of the hospital to identify the dead body.
44. PW-9 was known person of the deceased as well as the accused. According to him, five to six years prior to recording of his evidence, both accused and deceased were worked as coolies with him for about a month and at that time, they were residing in his house. It appears that the prosecution examined him to show the relationship between the accused and the deceased prior to the incident and his evidence corroborates to the said fact and he has stated that twice both accused and deceased worked in his house and both of them were residing together in a shed given to them during said period and he also came to know about the murder of Smt.Kamala.
45. In the cross-examination of PW-9, his evidences were denied but nothing is brought out to discard his evidence. As per the case of the prosecution, both accused and Kamala were working as labourers/maids in the house 31 Crl.A.No.278/2018 of PW-9. Expecting that he should maintain registers, receipts etc., for payment of wages, etc., is unnatural. Normally, while engaging coolie at agricultural lands and maid, private person may not keep any records or take signatures by the labourers engaged by him or her. Therefore, non-maintenance of such records is not sufficient or a ground to discredit his evidence.
46. From the evidence of PWs-1 to 9, the prosecution is able to prove that deceased and accused had live-in relationship after the death of husband of Smt.Kamala, viz., Babu. On 29.12.2013, both the deceased and accused approached PW-3, seeking for some job/work and as per his information, with the consent of PW-1, he sent accused and deceased to Alekkadi to work in the house of PW-1. On 29.12.2013 around 4.30 p.m., both deceased and accused came Alekkadi and met PWs-1 and 2 and they agreed to work in the land of PW-1. Both deceased and accused stayed in the shed situated near the house of PW-1 at Alekkadi. Both the deceased and accused went to Kaniyuru to fetch groceries, thereafter, returned in 32 Crl.A.No.278/2018 the night and slept together in the said shed. In the morning of 30.12.2013, around 5.00 p.m., to 5.30 p.m., presence of both the deceased and accused in the shed was witnessed by PW-2 and thereafter, around 6.00 a.m., accused left the said place and it was also found by PW-2. That Kamala died due to strangulation and she was brutally assaulted. It is also proved by the prosecution that on 30.12.2013, PW-4 dropped him from Ninthikallu to Putturu; Accused travelled by the Auto-rickshaw of PW-5. On the way, accused met PW-7. All these evidence undoubtedly prove that the accused came to Alekkadi on 29.12.2013 along with the deceased and on the next day early morning around 6.00 a.m., he left Alekkadi without informing anybody and went to Sullya. The prosecution is able to prove the following circumstances:
a) That accused and deceased had live-in
relationship;
b) On 29.12.2013, both accused and deceased came to the house of PW-1 at Alekkadi, stayed during the night in the shed belonging to PW-1; 33 Crl.A.No.278/2018
c) On the next day morning around 6.00 a.m., accused without intimating anybody left Alekkadi.
d) Accused was last seen in the company of deceased. On 29.12.2013, during night and early morning of 30.12.2013.
e) Smt.Kamala found dead in the early
morning of 30.12.2013 and her body was
identified.
47. The Prosecution has to prove circumstances that death of Smt.Kamala was a homicidal death. To prove the same, the prosecution had drawn inquest on the dead body as provided under Section 174 of Cr.P.C. as per Ex.P2 and it was drawn in the presence of PW-2, PW-10 and another witness by name K.Ibrahim. The said witnesses have verified the dead body and noted eight injuries in column No.7 of Ex.P2 and in column No.11, it is mentioned that death of Smt.Kamala was caused due to strangulation and also injuries on the head.
48. PW-2 and PW-10 have supported the case of prosecution in this regard. They have also stated about seizure of articles found on the dead body. 34 Crl.A.No.278/2018
49. PW-2 and PW-10 in their cross-examination have also stated about the injuries found on the dead body and both of them were of the opinion that the said injuries caused death of Smt.Kamala and they suspected that accused was responsible for the same. It is pertinent to note that accused did not deny the injuries stated in Ex.P2 as well as in the evidence of PW-2 and PW-10. PW-25, i.e., the investigating officer had conducted the said inquest in the presence of the above said witnesses. He has also corroborated evidence of PW-2 and PW-10 in respect of drawing of inquest on dead body of the deceased Kamala which are noted in Ex.P2.
50. PW-16, Dr.Mahabala Shetty has conducted autopsy on the dead body in K.S.Hegde Medical Hospital at Mangalore. He had noted totally 25 injuries which were external injuries found on the dead body before dissecting the dead body and he has also stated about internal injuries which were found after dissecting the body. He has given opinion regarding cause of the death as "the deceased died due to smothering". However, the deceased 35 Crl.A.No.278/2018 could have been incapacitated by blunt force trauma to the head, which has resulted in intracranial haemorrhage. It is also mentioned in Ex.P9 that death was taken place about 12 to 18 hours prior to preservation of the body in cold chamber on 30.12.2013 at 6.30 pm.
51. In Ex.P9, it is noted as condition of body at preservation in cold chamber on 30.12.2013 at 6.30 pm:-
"Body was cold. Rigor mortis had passed off. Post-mortem lividity was present and fixed on the back. Back ants were present near the lower limbs. Blood was seen oozing out of mouth and right nostril. Swelling was present on the right maxillary area (fracture, deformity of maxilla bone). Cornea was hazy, conjunctiva was congested, bluish dis-
colourisation of finger, nail, bits was present. At autopsy, body was cold and stiff, preserved in cold chamber. Post-
mortem lividity was present and fixed on the back.
Abdomen was distended. External deformity of the right leg was present. Suggestive of old mal-united fracture of right tibia. Bloodstains were present at the anal orifice. During 36 Crl.A.No.278/2018 post-mortem, PW-16 had collected nine samples which are mentioned in Ex.P9".
52. During evidence, PW-16 has reiterated contents of Ex.P9. In his cross-examination, injuries found on dead body were not disputed. However, only seizure of /collection of sample of articles during post-mortem were denied. The said suggestions of accused are not sufficient to disbelieve the evidence of PW-16. Accused has not disputed that Kamala was murdered. According to the suggestions to PW-1 and 2, someone had murdered deceased Kamala and it was not the accused. Therefore, overall evidence of PW-2, 10, 16 and 25, similarly Exs.P2 and P9 proves that the said Kamala died due to smothering. However, the deceased could have been incapacitated by blunt force trauma to the head which has resulted in intracranial haemorrhage.
53. In Paragraph-11 of evidence of PW-16, he has also stated that during struggle/scuffle between accused and deceased, external injuries Nos.2 to 21 mentioned in Ex.P9 could be caused and injuries number 1 37 Crl.A.No.278/2018 to 21 are sufficient to cause death of the deceased. He has also stated that by assault with MO-8, i.e., stick, the injuries sustained by the deceased at Sl.Nos.1 to 21, could be possible. The above said evidence clearly proves the case of prosecution that death of Kamala was homicidal death.
54. It is the case of prosecution that before conducting post-mortem, PW-16 removed all the dress materials found on dead body and handed over the same to woman P.C.No.903 by name Smt.Santrupti, who is examined as PW-19. In her evidence, she had stated that during post-mortem, the concerned medical officer handed over the clothes and other articles found on the dead body and handed over the same to her. In turn, she brought it and produced before the CPI-PW-25. PW-25 seized the said articles under mahazar as per Ex.P3, in the presence of two witnesses by name Sheshappa (PW-11) and Dinesh. PW-19, PW-11 and PW-25 have stated about the said fact and identified articles as MOs-4 to 6. In their cross- examination also, nothing is brought out to disbelieve the 38 Crl.A.No.278/2018 evidence of said prosecution witnesses regarding seizure of MOs-4 to 6. The said articles seized were having bloodstains and they were produced before Court during trial.
55. On 13.02.2014, PW-25 had arrested the accused, interrogated him and recorded his statement. During the recording of the statement, the accused confessed that "at the time of incident, he was wearing a shirt which had bloodstains and he also kept the said shirt along with MO-8 below a coconut tree, situated near the spot of incident and he would show the said place if he were taken to the said place". The relevant portion of confession statement which is admissible under Section 27 of the Evidence Act, was marked as per Ex.P13.
56. To seize the said articles, PW-25 secured presence of two witnesses, one is, by name Nagesh and another is Keshav Gowda, i.e., PW-12. The accused took police along with said Nagesh as well as PW-12 to the place wherein he had kept shirt as well as MO-8 and showed 39 Crl.A.No.278/2018 them the said articles. Both were seized by the police under Ex.P4 on 14.02.2014, it was signed by PW-12 as well as PW-25. Both of them have supported the case of prosecution during the evidence of the case. Even the said shirt as well as stick were bloodstained. In the cross examination, PWs-12 and 25 elaborated the evidence given in the examination-in-chief. Several hypothetical questions were asked and they were suitably answered by them. Nothing is brought out to doubt their evidence. The said seized article were produced during evidence and marked at MOs-7 and 8.
57. The investigating officer thought of securing blood sample of the accused, to send it for DNA test to verify the nail clippings of the deceased. Accordingly, PW- 25 submitted a requisition before the JMFC court to collect the blood sample of the accused. The learned Magistrate permitted the investigating officer to take blood sample under the supervision of the Court by competent Doctor. Accordingly, on 14.02.2014, PW-26 Dr.Asha Jyothi had taken blood sample of the accused in 40 Crl.A.No.278/2018 the Court in the presence of witnesses. The said format is marked as Ex.P5. Dr.Asha Jyothi is examined as PW-26. One Nagesh Shetty, who witnessed the taking of blood sample is examined as PW-13. Both of them have stated about taking of blood sample of the accused under supervision of the Court and obtaining signatures. The said evidence, corroborate evidence of PW-25 in this regard.
58. In the cross-examination, accused even denied presence of the accused before the Court and taking of blood samples. Mere denial of the said fact is not sufficient to discard evidence of PW-26, PW-13 and PW-25.
59. PW-25 had sent all the blood stained clothes to RFSL, Bengaluru and FSL, Bengaluru and also sent blood sample of accused to FSL, Bengaluru for DNA test.
60. RFSL gave the report dated 07.03.2014 as per Ex.P16, that shows that there were blood stains in Item Nos.1, 2, 4, 5, 6, F and G. The prosecution secured serology report at Ex.P19 dated 07.05.2014. The said report shows that "Item Nos.1, 2, 4, 5, 6, F and G are 41 Crl.A.No.278/2018 stained with human blood and Item Nos.1, 2, 4, 5, 6 and F are stained with 'A' group blood and blood group of stains in item number 'G' could not be determined because of result of the tests were inconclusive". Item No.1 is a plastic mat; Item No.2 is a blood swabs; Item number 3 is a nighty of the deceased; Item number 5 is petticoat of the deceased; Item number 6 is blouse and item number 'F', is shirt of the accused, and Item number 'G' is a wooden club. Blood stains found on the clothes worn by the deceased as well as blood stains found on the shirt worn by the accused were all containing blood stains of 'A' group, that indicates that the blood stains found on the dress of the accused was of the deceased. The accused did not explain about blood stains on his shirt.
61. The blood samples were sent to FSL, Bangalore DNA Centre were tested and report was given by the concerned Scientific Officer as per Ex.P20 dated 31.08.2015. In the conclusion of Ex.P20, the concerned scientific officer has given the following conclusions: 42 Crl.A.No.278/2018
CONCLUSION:
From the DNA profile examinations results of articles sent in item nos. 1, 2 and 3, it is found that:
1. The skin tissue detected on nail clippings of right hand sent in item no. 1 and are of human origin and of both male and female sex.
2. The skin tissue detected on nail clippings of left hand sent in item no.1 and are of human origin and of female sex.
3. The DNA profile of Sri. V.P. Ravi s/o Late Sri. Putte Gowda sample blood sent in item no. 3 is matching with the DNA profile of a male individual of the skin tissue detected on nail clippings of right hand sent in item no. 1.
Therefore, Sri. V.P. Ravi s/o Late Sri. Putte Gowda sample blood sent in item no. 3 is included from being the contributor of skin tissue detected on nail clippings of right hand sent in item no. 1.
62. According to the defence of the accused, he did not go to Alekkadi on the alleged date of murder of Smt.Kamala. If that is the case, then how could the skin tissue detected on the nail clipping of the deceased having the same DNA as of the DNA of the accused Ravi, as noted 43 Crl.A.No.278/2018 in Ex.P20, is not explained by the accused either during the recording of the statement under Section 313 of Cr.P.C. or in his written submission filed before the Trial Court. The said evidence prove the involvement of the accused in commission of crime, beyond reasonable doubt.
63. Other witnesses are members of the team of investigation. During the evidence, they have deposed their respective roles in assisting the investigating officer during conducting the investigation. There is no need to discuss their evidence in detail. PW-25, who is the leader of the team, i.e., CPI of Subramanya Circle has stated in detail about investigation done by him till filing of the charge sheet. During his cross-examination, he withstood the cross-examination and properly answered to the questions raised by the accused/defence counsel and nothing is brought out to disbelieve or discard his evidence. There are no material lapses in the investigation, which is fatal to the case of prosecution.
44 Crl.A.No.278/2018
64. Accused was last seen in the company of the deceased, in the shed belonging to PW-1, situated at Alekkadi. The Prosecution is able to prove that there were no other persons inside the said shed during the night though the accused tried to make out a case that someone came along with Kamala and slept with her during the night, but the said suggestion is not probable. Therefore, it was the duty of the accused to explain regarding injuries on the deceased since it is within his personal knowledge. Under Section 106 of the Indian Evidence Act, the accused has to explain about injuries found on the dead body of Kamala. The accused did not explain about the said injuries. Therefore, adverse inference has to be drawn against the accused.
65. The Trial Court in the impugned judgment has discussed the evidence and also came to conclusion that death of Kamala was caused by the accused. However, the Trial Court found that incident was taken place due to grave and sudden provocation given by the deceased. She refused to prepare the food when the accused tried to woke 45 Crl.A.No.278/2018 her up and hence as per exception of Section 300 of IPC, it does not amount to murder but homicidal death not amounting to murder.
66. The prosecution has produced the evidence, both oral and documentary, to prove all the circumstances, which conclusively prove that accused was responsible for causing death of Smt.Kamala. During the cross- examination of PWs-1 and 2, the accused had taken a defence that he did not come to Alekkadi along with Smt.Kamala and Kamala alone came to Alekkadi to work. He took defence of alibi.
67. The burden lies on him to prove said defence. Accused did not lead any defence evidence and none of prosecution witness admitted the said facts. The said facts helps prosecution to prove his presence at spot of incidence and his involvement in commission of crime.
68. The submission of learned advocate appearing for respondent/accused that after arrest of the accused police took his skin tissue and misused the same 46 Crl.A.No.278/2018 to prove the DNA test, does not hold any water. The said submission is not acceptable for two reasons; one is already assigned by the learned Trial Judge that no such defence was taken when the accused was produced before the Magistrate at the inception. That reason is tenable. The next reason is, that post-mortem was conducted on 31.12.2013 and thereafter the accused was absconded. Accused was arrested on 13.02.2014, i.e., nearly one and half months after post mortem. Therefore, it is not probable. It was not brought out in the evidence of PW-25 that accused had enmity with PW-25 to falsely implicate the accused in this case. Under such circumstances, the contention of the accused in this regard is not believable or probable.
69. The learned Sessions Judge convicted and sentenced the accused under Section 304(Part-II) is on two grounds that, one is, there was no motive for the accused to cause death of Smt.Kamala. Second is, that the incident had taken place due to grave and sudden provocation and such provocation was given by the deceased. Hence, the 47 Crl.A.No.278/2018 accused had no intention to kill Smt.Kamala and there was no pre-meditation to commit the crime. On these grounds, the learned Sessions Judge held that it is not murder but culpable homicide not amounting to murder.
70. It is not the defence of the accused that during the intervening night, when the incident had taken place, he had requested deceased to prepare food since he was hungry and instead of preparing the food she started quarrelling with him and provoked him because of which, he assaulted her and not with any intention to murder her. Why the incident had taken place and under what circumstances he assaulted her so brutally is not disclosed by the accused. The facts which are narrated in the impugned judgment appears to be on the basis of confession of the accused before the investigating officer; Except confession, leading to discovery of articles, other confessions are not admissible in evidence under Section 25 of the Indian Evidence Act. Therefore, those facts cannot be considered.
48 Crl.A.No.278/2018
71. There are no eye-witnesses to believe the said facts as stated by the accused before the investigating officer leading to this incident. In the absence of both, it is difficult to hold that the deceased had given grave and sudden provocation to the accused to commit the said crime. Normally, motive for committing a crime is hidden in the mind of an accused and only devil knows the criminal mind of an accused and the reason to commit crime. Therefore, the motive has to be gathered from the facts and circumstances of each case.
72. In this case, looking to the injuries it is probable that the accused held her hair and banged her head to the ground causing bleeding head injuries. Thereafter, assaulted her with MO-8 on various parts of the body and caused about 21 injuries which are all anti- mortem as per evidence of PW-16 and Ex.P9. Looking to the blood stain and skin tissue found in the nail clippings of deceased, it appears that there was scuffle and deceased resisted the attack of accused. Inspite of that, accused did 49 Crl.A.No.278/2018 not stop, even considering his long standing relationship with deceased.
73. Merely deceased refused to prepare food in the midnight about 2 O'Clock cannot be a ground to believe that it was a grave and sudden provocation. According to case of prosecution, both had consumed rum and they were addicted to liquor. Therefore, it was not involuntary consumption of liquor. Merely refusal of by deceased to prepare food, cannot be a ground to assault so brutally and in addition to that strangulate her. Therefore, the said reasons assigned by the learned Sessions judge is not tenable.
74. The subsequent conduct of the accused is also very important. The accused had assaulted her, banged her head to the ground, thereafter, smothered her and killed her and was sleeping till morning, next to the dead body and absconded in the morning, taking advantage of the fact that there were no residential houses near the place of incident, except the house of PW-1. Even 50 Crl.A.No.278/2018 accused did not care to see as to whether the deceased had any life or he could provide treatment to her after his anger came down. He had no repentance for causing death of a lady who had live-in relationship with him for about 20 to 25 years. The said conduct also shows that he had motive or knowledge of his act that may cause death of deceased at the time of commission of the crime.
75. Section 300 of IPC deals with the murder. According to Explanation No.2 to Section 300, "if death is caused with an intention of causing such a bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or - (3) If it is 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 (4) 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. 51 Crl.A.No.278/2018
76. In exception (1), to Section 300 of IPC culpable homicide is not amounting to murder, if offence is committed due to grave and sudden provocation. Whether the provocation was grave and sudden enough to prevent the offence from amounting to a murder is a question of fact. In this case, as already stated above, the provocation, even if we accept that she refused to prepare the food or scratched face of the accused, that cannot be considered as grave and sudden provocation to commit murder of Smt.Kamala. It is an evidence of PWs-7 and 8 that there were frequent quarrels between deceased and accused. It was not a unique quarrel or an exceptional case on the date of incident. Therefore, even if we believe that there was refusal by the wife to get up in the midnight and prepare the food, that cannot be considered as grave and sudden provocation to accused to kill her. Therefore, the exception No.1 to Section 300 of IPC is not applicable to the facts of the present case.
52 Crl.A.No.278/2018
77. The learned Sessions Judge has also considered to convict the accused under Section 304 (Part- II) on the ground that there was no motive for the accused to commit the crime. The said findings are also incorrect. Mere motive is not sufficient. The explanation given to Sections 299 and 300 of IPC and illustrations given in the said Sections shows that in all the cases, the motive is not important or must. It is sufficient if the accused had knowledge about his act and consequences of his act. In that event, even in the absence of motive, the accused could be held responsible for the murder.
78. In the case of Praful Sudhakar Prab Vs. State of Maharashtra1, the Hon'ble Apex Court relying on its previous judgments from the years 1952 to 2010, on this subject held that:
"absence of motive in a murder trial, "motive for committing a crime is something which is hidden in the mind of the accused"- reiterated that it is an impossible task for prosecution to prove what precisely have impelled 1 (2016) 12 SCC 783 53 Crl.A.No.278/2018 in the murder to kill a particular person-if motive is proved, that would supply a link in the chain of circumstantial evidence, but absence thereof cannot be a ground to reject the prosecution case".
79. In this case, except the motive, all other circumstances clearly shows that the accused had knowledge that by such act may result in death of Smt.Kamala, then also strangulated her and committed the said crime. According to post-mortem report and evidence of PW-16, the deceased was weighing about 34 and odd Kgs, which indicates that she was weak and she was aged between 50 to 55 years. It is also the case of prosecution that she was addicted to liquor. These facts are within the knowledge of accused. Knowing fully well all these facts, he banged her head to the ground with force and caused severe bleeding head injury, thereafter, strangulated her and assaulted her on various parts of the body causing 21 injuries. A common man without any medical or legal knowledge or background can also have the knowledge that strangulating and causing such a bodily injury may likely to cause death. 54 Crl.A.No.278/2018 Under these circumstances, the accused had knowledge and with that knowledge, he assaulted her and caused her head injury. Therefore, even if we consider that there was no motive in the present case, it is not fatal to the case of prosecution and only on that ground, the Court cannot hold that it was a culpable homicide not amounting to murder and punish the accused under Section 304 (Part-II) of IPC. Therefore, the said finding of the Trial Court is not tenable.
80. Under Section 386 of the Cr.P.C, the appellate Court has power to reverse the findings of the trial Court, if, such findings of trial Court are perverse or contrary to the settled principle of Law and misreading of the evidence. In the following cases, Hon'ble Apex Court held that in the circumstances stated therein, the appellate Court could interfere in the findings of the trial Court.
81. In the case of Guru Dutt Pathak v. State of Uttar Pradesh2, the Hon'ble Apex Court has held that: 2
(2021) 6 SCC 116 55 Crl.A.No.278/2018 "Each and every ground on which trial court acquitted accused was elaborately dealt with by High Court On reappreciation of entire evidence on record, High Court specifically concluded that findings recorded by trial court were perverse Therefore, High Court was right in interfering with judgment and order of acquittal passed by trial court and convicting accused under Ss. 302/34 IPC No interference with impugned judgment and order passed by High Court is warranted herein Hence, conviction of accused under Ss. 302/34 IPC, stands confirmed".
In the case of Siju Kurian vs. State of Karnataka3, it is held that(we quote) "16. It need not be restated that it would be open for the High Court to re-apprise the evidence and conclusions drawn by the Trial Court and in the case of the judgment of the trial court being perverse that is contrary to the evidence on record, then in such circumstances the High Court would be justified in interfering with the findings of the Trial Court and/or reversing the finding of the Trial Court. In Gamini Bala Koteswara Rao v. State of Andhra Pradesh2 it has been held by this Court as under:
"14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr. Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to 3 2023 SCC OnLine SC 429 56 Crl.A.No.278/2018 reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse"
in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so.
17. The Appellate court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having placed on the High Court in exercise of its power as an Appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on exercise of the power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed.
18. In the case of Sheo Swarup v. King Emperor3, it has been held by the Privy Council as under:
But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as:
1) The views/opinion of the trial judge as to the credibility of the witnesses;
2) The presumption of innocence in favour of the accused;57 Crl.A.No.278/2018
3) The right of the accused to the benefit of any doubt; and
4) The slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.
15. In Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka4 reiterated the legal position as under : (SCC p. 432, para 42) '42. ... (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of 4 (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , 58 Crl.A.No.278/2018 the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.'
82. In the present the learned Session Judge has not appreciated the evidence properly in the facts and circumstances of the case. The learned Session Judge without any basis held that due to grave and sudden provocation, the incident had occurred, though the contention of the respondent-accused was total denial and that even he did not go to the place of incidence and stayed with the deceased. There are no other witnesses to hold that the incident was occurred due to grave and sudden provocation of the deceased to commit the crime. Therefore, the finding of the trial Court is perverse, which needs to be interfered by this Court. In the above said judgments, the Hon'ble Supreme Court laid down the law 59 Crl.A.No.278/2018 that, if the findings of the trial judge is perverse, then the appellate Court has to interfere in the said findings, reverse or modify the judgment of trial Court. Therefore, law laid down in the above said judgments are aptly applicable to the facts of the present case.
83. The evidence which are appreciated in the above paragraphs clearly proves that the accused has committed murder of Smt.Kamala and committed an offence punishable under Section 302 of the IPC.
84. For the aforesaid discussion, we answer the points raised above in the affirmative and pass following:
ORDER
i) The Appeal is allowed.
ii) The impugned judgment passed by
V Additional District and Sessions
Judge, D.K. Mangalore, sitting at
Puttur, Dakshina Kannada in S.C.No.
55 of 2014 dated 04.04.2017 is
modified.
60 Crl.A.No.278/2018
iii) The accused is convicted of the
offence punishable under Section
302 of IPC.
Sd/-
JUDGE
Sd/-
JUDGE
DH