Karnataka High Court
State Of Karnataka vs Ramesh Chandar Adake on 15 March, 2018
Bench: S.Sujatha, John Michael Cunha
CRL.A.No.100210/2014
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF MARCH, 2018
PRESENT
THE HON'BLE MRS. JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL No.100210/2014
BETWEEN:
STATE OF KARNATAKA
RPTD.BY THE CIRCLE POLICE
INSPECTOR, NIPPANI,
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... APPELLANT
(BY SRI.V. M. BANAKAR, ADDL. SPP)
AND:
RAMESH CHANDAR ADAKE
AGE: 47 YEARS,
OCC: COOLIE,
R/O.CHANDOOR,
TQ: CHIKODI,
... RESPONDENT
(BY SRI. M B GUNDAWADE, ADVOCATE)
---
CRL.A.No.100210/2014
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE
SEEKING TO GRANT SPECIAL LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED:
10.07.2014 PASSED IN S.C. NO.343 OF 2012 BY THE
LEARNED VII ADDL. DISTRICT AND SESSIONS JUDGE,
BELAGAVI SITTING AT CHIKODI AND TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED
10.07.2014 PASSED IN S.C. NO.343 OF 2012 BY THE
LEARNED VII ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BELAGAVI SITTING AT CHIKODI AND CONVICT
THE RESPONDENT / ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 449, 302 AND 309 OF THE
INDIAN PENAL CODE.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 30.01.2018, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, JOHN
MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
CRL.A.No.100210/2014
3
JUDGMENT
This is an appeal against the judgment and order of acquittal dated 10.07.2014 passed by the VII Addl. District and Sessions Judge, Belagavi at Chikodi, in S.C.No.343/2012. By the impugned judgment, the learned Sessions Judge has acquitted the respondent (hereinafter referred to as 'the accused') of the charges punishable under Sections 449, 302 and 309 of the IPC.
2. The case of the prosecution is that;
(i) The accused is the husband of the deceased Yellawwa. She gave birth to a daughter and two sons in their wedlock. The accused used to ill-treat and frequently send the deceased to her parents' house. In this regard, in the year 2002, a mediation was convened and at the instance of the elders, the accused was made to execute a bond undertaking to look after the deceased without ill-treating and harassing her. Yet, the accused continued his bad habits of drinking and CRL.A.No.100210/2014 4 womanizing. It is alleged that the accused was carrying on illicit relationship with other women and when the deceased raised objection, he used to abuse and assault her. Few days earlier to the incident, the accused quarreled with the deceased and she left for her parents' house and started residing in the house of her brother - PW1. On 05.05.2012, between 11.30 am and 11.45 am, the accused came to the house of PW1, armed with a sickle and assaulted the deceased on the left side of her neck, shoulder, left breast and on buttock, causing severe injuries and thereafter, went away holding the sickle with him.
(ii) FIR was registered on the basis of the complaint lodged by the brother of the deceased (PW1). Investigation was taken up and charge sheet was filed against the accused alleging commission of offences punishable under Sections 449, 302 and 309 of the IPC. Since the accused pleaded innocence, trial was held. CRL.A.No.100210/2014 5
(iii) In order to bring home the guilt of the accused, prosecution examined 22 witnesses as PW1 to PW22 and produced in evidence 28 documents marked as Exs. P1 to P28 and the material objects at M.O.1 to M.O.13.
(iv) In his examination under Section 313 Cr.P.C., accused denied all the incriminating circumstances spoken to by the prosecution witnesses and took up a plea that he was arrested by the police from his house on 20.05.2012. He did not choose to enter into witness box or produce any evidence on his behalf.
(v) On hearing the learned counsel appearing for the accused and the learned Public Prosecutor, by the impugned judgment, the trial Court acquitted the accused of all the charges. The State has preferred this appeal questioning the correctness and legality of the impugned judgment and acquittal of the accused. CRL.A.No.100210/2014 6
3. We have heard the Sri.V.M.Banakar, learned Addl. SPP appearing for the State and Sri.M.B. Gundawade, learned counsel appearing for the accused.
4. The learned Addl. SPP submits that the acquittal of the accused is wholly unjustified and illegal. The trial Court has misread the evidence of the material witness examined by the prosecution namely, the daughter of the deceased, who is an eyewitness to the incident. She has given a natural account of the occurrence, but the trial Court has disbelieved her evidence by picking out inconsistencies and contradictions, which in fact do not exist in her testimony. The learned Addl. SPP would submit that, it is solely on account of misreading the evidence by the trial Court, the proceedings have ended in acquittal. He further contends that the trial Court has also failed to take into consideration the corroborative evidence produced by the prosecution, by way of seizure of the CRL.A.No.100210/2014 7 sickle used for commission of the offence and the shirt of the accused containing the blood group of the deceased. The trial Court has ignored these material evidences, which has resulted in failure of justice. The learned Addl. SPP has further pointed out that the trial Court has failed to take into consideration the fact that the accused was caught by the prosecution witnesses soon after the commission of the offence and was handed over to the police. He consumed poison in a bid to avoid legal punishment, but has ended up giving a statement before the Taluka Executive Magistrate admitting the offence. All these facts and circumstances have been ignored by the trial Court leading to an erroneous acquittal of the accused. Hence the learned Addl. SPP has sought to re-appreciate the entire evidence and to reverse the findings recorded by the trial Court.
CRL.A.No.100210/20148
5. Sri.M.B.Gundawade, learned counsel appearing for the accused, however, has argued in support of the impugned judgment. He contends that the prosecution case is rested solely on the testimony of a solitary witness, who is none other than the daughter of the deceased. She is an interested witness. Her presence at the spot of occurrence is doubtful. Her evidence is fraught with inconsistencies and contradictions. In her evidence, she has deviated from the core case of the prosecution. The trial Court has rightly noticed these inconsistencies and contradictions, which seriously affect the veracity of the testimony of PW9, rendering it unreliable and untrustworthy. Therefore, no fault could be found with the approach of the trial Court in appreciating the evidence of PW9. He further contends that PW9, the solitary witness examined by the prosecution, has not named the accused and her evidence on the face of it indicates that she is a tutored witness. The circumstances brought CRL.A.No.100210/2014 9 out in the course of her cross-examination indicate that she was acting on the instruction of her uncle, namely PW1 and her grand mother (PW8). The trial Court has taken into consideration all these facts and circumstances and has rightly acquitted the accused. It is the submission of the learned counsel that the appeal having been filed against the judgment of acquittal, merely because another view is possible, cannot be a reason to interfere with the well considered judgment rendered by the Court below. Further, he submits that the evidence produced by the prosecution with regard to arrest of the accused leads to doubt the very presence of the accused at the spot. The medical evidence produced by the prosecution establishes that the accused had consumed poison, and therefore he could not have committed the alleged offences and hence, the trial Court was justified in returning a finding of acquittal. On these grounds, the learned counsel has argued for dismissal of the appeal.
CRL.A.No.100210/201410
6. We have bestowed our anxious consideration to the submissions made by the learned counsels appearing for the parties and have carefully examined the oral and documentary evidence produced by the prosecution.
7. Before adverting to the contentions urged by the parties, it is necessary to note that this is an appeal against the judgment of acquittal. By virtue of the impugned judgment, the initial presumption of innocence available in favour of the accused is strengthened and hence the Court is required to be cautious in dealing with the issues raised by the parties. The power of the High Court in an appeal against the order of acquittal or conviction is now well settled. In the case of Harijana Thirupala Vs. Public Prosecutor reported in (2002) 6 SCC 470, the Hon'ble Supreme Court has held that;
"12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a CRL.A.No.100210/2014 11 court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity." (underlining supplied) Further, in Ramanand Yadav V.Prabhu Nath Jha reported in (2003) 12 SCC 606, the Hon'ble Supreme Court while delineating the power of the High Court in deciding the appeal against an order of acquittal, in para 21 has held as under:
"21. There is no embargo on the appellate court reviewing the evidence upon which an order of CRL.A.No.100210/2014 12 acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not." (underlining supplied)
8. In the instant case, the main ground on which the impugned judgment is assailed is that the trial Court has misread the evidence of the crucial CRL.A.No.100210/2014 13 witnesses and that it has ignored the admissible evidence, which if properly considered, could lead to the conviction of the accused. In view of this contention, we have taken upon the task of reviewing the evidence to arrive at our own independent conclusion as to the guilt or otherwise of the accused.
9. The case of the prosecution undisputably is rested on the direct evidence of PW9, the daughter of the accused and the deceased. She was aged 16 years at the time of incident. Her evidence is recorded in Kannada. The English translation of her evidence reads as under:
"The accused is my father. PW1 is my
maternal uncle. CW10 is my grand mother.
CW17 is my younger brother. On 05.05.2012 around 11.30 am, my mother was murdered by assaulting with a sickle in the house of PW1. I have seen the murder. He assaulted her on her chest, shoulder and stomach. I screamed. My grand mother CW10 and CW13 CRL.A.No.100210/2014 14 came there. At that time, the accused ran away. CW15 and CW16 caught hold of the accused. The police were informed over phone. When we were asking for money, the accused was assaulting my mother. The accused was given to drinking and womanizing and he was quarreling with my mother. CW1 lodged the complaint. Now I see the said sickle. It is already marked as M.O.6.
The accused was asking me to press his legs. When I was pressing his legs, he was pulling my hands. At that time, the accused was telling me not to inform the matter to my mother. When I was taking bath the accused was peeping. I was informing this matter to my mother. When she questioned the accused, the accused was telling that he beat me while doing my lessons. I learnt that there was a panchayat in this regard and accused had executed a bond. I am residing in the house of PW1. MOs. 1 to 6 were found at the spot of murder. M.Os. 8 to 10 were found on the body of my mother at the time of her death."
CRL.A.No.100210/201415
10. The trial Court has disbelieved the evidence of PW9 and has held that the testimony of PW9 suffers from inconsistencies and contradictions and therefore, it is not worthy of acceptance.
11. On reading the impugned judgment, we find that the trial Court has assigned the following reasons to discard the evidence of PW9, namely;
(i) PW9 has deposed before the Court that the accused used to outrage her modesty. This evidence is a total improvement. It does not find corroboration in the testimony of any other witnesses and therefore, the motive projected by the prosecution is false.
(ii) PW9 did not narrate the alleged outrage of her modesty by the accused to anyone until her examination before the Court and therefore, the allegation made by her for the first time before the Court cannot be given any credence. Her evidence points out CRL.A.No.100210/2014 16 to her interestedness in the case and therefore, her evidence is not believable.
(iii) In the cross-examination of PW9, it is elicited that the accused was in good terms with her brothers, but not so with PW9 and therefore, there was a reason for her to depose against the accused. Further, the trial Court has reasoned that, if the accused was not in good terms with PW9, her evidence that on seeing the accused entering the house carrying the plastic bag, she ran towards him with the expectation that he might have brought something to eat, is inconsistent to her testimony and highly improbable and therefore, cannot be attached any weight.
(iv) In her cross-examination, PW9 has admitted that soon after the incident, PW1, CW10 and CW14 discussed together and then lodged the complaint, which according to the learned trial Judge is another circumstance which militates against the case of the prosecution.
CRL.A.No.100210/201417
(v) In her chief examination, PW9 has stated that when the accused entered the house, she was watching TV along with her mother. But contrary to this statement, in her cross-examination, it is elicited that her mother was sleeping while watching TV and she told her that accused came from the backyard. According to the trial Court, this evidence has given rise to a serious contradiction in the evidence of PW9 affecting the credibility of her testimony rendering it unbelievable and untrustworthy and consequently, the trial Judge has discarded the entire evidence of PW9.
12. We have considered the entire evidence of PW9 and have analysed each and every circumstance deposed by her in the context of other materials available on record and we are of the considered view that the approach adopted by the trial Court in appreciating the evidence of PW9 and the reasoning assigned by it to disbelieve her evidence is contrary to CRL.A.No.100210/2014 18 the settled principles of law and is perverse and arbitrary. No doubt, it is true that it is not an easy task to evaluate the evidence of a witness in a criminal trial and to judge whether the witness is speaking truth or not. Over the years, the Courts have evolved salutary principles which guide the courts in assessing the worth of the evidence given by a witness in a court of law. But these rules serve only as guidelines. There are no hard and fast rules or straight jacket formulae. The weight of the testimony of the witnesses, generally depend upon several factors, such as, the power of observation, memory of the witnesses, their motive and background. As observed in numerous decisions by the Hon'ble Supreme Court, the circumstance which affects the capacity and credibility of a witness to speak the truth depends upon the knowledge and power of observation, power of memory and power of reproduction. The knowledge depends partly upon the accuracy of observation and partly upon memory and partly on CRL.A.No.100210/2014 19 presence of mind. The Courts, therefore, are required to adopt a pragmatic and commonsense approach in evaluating and assessing the evidence of a witness.
"The fringe variations, discrepancies in details, contradictions in narration and embellishment in non- essentials do not militate the core of testimony" (vide AIR 1973 SC 2622). "The discrepancies in evidence do not necessarily demolish the veracity of witnesses".
13. It is now well settled that the Courts must weigh the evidence in each case and not adopt any arbitrary formula or yardstick in measuring its worth or worthlessness. In Ugar Ahir Vs. State of Bihar, reported in AIR 1965 SC 277, the Hon'ble Supreme Court has observed that;
"The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate, exaggeration, CRL.A.No.100210/2014 20 embroidery or embellishment. It is, therefore, the duty of the court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
14. If the evidence of PW9 is analyzed in the backdrop of the above principles, in our view, the evidence of PW9 merits full credence and it could be made the sole basis for conviction of the accused. On a careful scrutiny of her evidence, we find overwhelming reasons to accept the evidence of PW9 as fully reliable and trustworthy. We enumerate few of them here below:
(i) First, the presence of PW9 in the house of PW1 at the relevant point of time is beyond pale of doubt. Her evidence in this regard is not disputed in the course of the cross-examination. Her testimony gets reliable CRL.A.No.100210/2014 21 corroboration in the contents of the complaint lodged at the earliest point of time. In the said complaint (Ex.P1), PW1, the complainant has specifically stated that the deceased had come to reside in his house few days earlier to the incident. Further, it is narrated therein that, on the date of incident at about 11.30 am, on hearing the screams of the deceased, PW1 rushed to the house and found the accused running away holding a sickle (MO.6). It is further narrated in the complaint that, when his mother and sister-in-law and the neighbors came running to the spot, on enquiry with PW9, she told them that her father assaulted the deceased with a sickle and ran away. The prompt disclosure made by PW.9 is relevant under section 8 of the Evidence Act and is indicative of the fact that she is an eye-witness to the incident. By this evidence, the presence of PW9 at the spot of occurrence stands established. Though in the cross-examination, an attempt was made to suggest that at the time of CRL.A.No.100210/2014 22 occurrence, PW9 had gone to the shop of her grand mother, PW9 has consistently denied this suggestion and has reiterated that she was very much present in the house during the occurrence. The accused has not been able to demolish this part of the evidence of PW9.
Therefore, the trial Court was not justified in viewing the evidence of PW9 with suspicion.
(ii) Second, the sequence of events brought out in the evidence of PW9 and the narration of the occurrence given by her in her evidence lends intrinsic corroboration to her testimony. She has narrated the manner in which the accused entered the house and inflicted injuries on the deceased. The statement made by her that after the assault, the accused went away through the back door leading to the backyard, finds corroboration in the evidence of PW1 as well as in the contents of the spot mahazar (Ex.P4) and the inquest mahazar (Ex.P3). In this regard, it is established in the evidence of PW1, the brother of the deceased, that the CRL.A.No.100210/2014 23 accused, while running away, had kept the sickle (MO.6) in the backyard on a plastic bag (MO.7). This sickle (MO.6) and the bag (MO.7) were seized from the said place under the spot mahazar (Ex.P4). This evidence fully corroborates the statement of PW9 that, after the commission of the offence, the accused went away through the backyard door.
(iii) Third, another important circumstance which lends credibility to the testimony of PW9 is that, in her cross-examination, it is elicited that when the accused entered the house, he was holding a plastic bag and she went near him expecting that he might have brought some sweets. Though the trial court has strongly commented on this piece of evidence and has branded PW.9 as a false witness on the ground that PW9 has admitted in her evidence that she was not in good terms with her father, but looking into the background of the parties, their inter-se relationship, and the circumstance in which the occurrence took place, we do CRL.A.No.100210/2014 24 not subscribe to the view taken by the trial Court in rejecting her evidence on that score. In assessing the truthfulness of this statement, it is necessary to note that the above answers were elicited in the course of cross-examination by the defence counsel. In her chief examination, she has given bare minimum details of the incident apparently for the reason that she was deposing against her own father. The circumstance of PW9 running to greet her father on seeing him coming to the house has to be viewed in that context. This evidence, in our view, establishes her presence in the house rather than creating doubt about the veracity of her testimony. No doubt, she has stated in her evidence that she was not in good terms with her father, but she has justified her stand by reiterating that on account of his misbehavior with her she was not liking him, but that does not lead to the inference that she was inimically disposed towards the accused or that she was interested to falsely implicate him in the murder of her CRL.A.No.100210/2014 25 mother. Naturally, on account of the ill-treatment meted out by the accused to her mother and his vices might have created disaffection towards her father, but that does not mean that she has concocted a false story so as to wreak vengeance against her father as observed by the trial Court. It is proved in evidence that the plastic bag carried by the accused is seized during the spot mahazar from the backyard, which itself vouchsafes the truthfulness of her evidence that while entering the house, the accused was carrying a plastic bag with him. In our opinion, the conduct of PW9 as stated above, not only establishes the fact that the accused had come to the house of PW1 on the date of occurrence holding a plastic bag, but also establishes that the said bag contained a sickle with which he assaulted the deceased and committed her murder. This evidence, in our view, goes in support of the prosecution.
CRL.A.No.100210/201426
(iv) Fourth, the other circumstance which renders the testimony of PW9 trustworthy and reliable is that, she has specifically stated in her evidence that, while the accused entered the house, the deceased and PW9 were watching TV. In the cross-examination, it is elicited that the deceased was lying down on a mat. The trial Court has disbelieved this portion of the evidence of PW9 and has noted that, in the earlier part of her cross- examination, PW9 has admitted that she was in the backyard when the accused entered the house and therefore, the statement made by her in that regard is false and cannot be believed. We have meticulously considered the cross-examination of PW9 and we do not find anything in her evidence to show that she has admitted in the cross-examination that she was in the backyard when the accused entered the house as observed by the trial Court. On the other hand, the relevant portion of the cross-examination reads as follows:
CRL.A.No.100210/201427
"DgÉÆæ PÉÆêÀiÁ¬Ä gÀªÀgÀ ºÉÆ®¢AzÀ »vÀÛ® ¨ÁV® ªÀÄÆ®PÀ §gÀĪÀÅzÀ£ÀÄß AiÀiÁgÀÄ £ÉÆÃr®è JAzÀgÉ ¸ÀjAiÀÄ®è, £Á£ÀÄ £ÉÆÃrzÉÝãÉ, DgÉÆæ §gÀĪÁUÀ £Á£ÀÄ »vÀÛ®°è EzÉÝãÀÄ, ¥ÉÆð¸ÀgÀ ªÀÄÄAzÉ ¸ÀzÀj «µÀAiÀÄ ºÉýzÉÝãÉ, £Á£ÀÄ DgÉÆæ »vÀÛ® ¨ÁV°¤AzÀ §gÀĪÀÅzÀ£ÀÄß £ÉÆÃrzÉÝÃ£É CAvÁ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è."
15. From the above evidence, it is clear that PW9 has flatly denied the suggestion put to her that before the police, during her examination under section 161 of Cr.P.C., she has stated that she was in the backyard when the accused entered the house. The trial court has misunderstood this denial as admission on the part of PW9 and on that premise, the trial court has proceeded to hold that the evidence of PW9 is inconsistent and contradictory. Needless to say, this approach adopted by the trial court in appreciating the evidence of the material witness and discarding her entire testimony by misreading it, has resulted in gross miscarriage of justice. Therefore, in our view, solely on CRL.A.No.100210/2014 28 this score, the reasoning assigned by the trial court is liable to be set-aside.
16. On careful scrutiny of her evidence, we do not find any inconsistency or contradiction in the evidence of PW9 so as to discard the entire testimony of PW9 as untrustworthy as done by the trial court. On the other hand, on reading her entire evidence, we find that PW9 has stood firm in the cross-examination and has reiterated that the deceased was watching TV and the back door leading to backyard was open and she saw the accused entering the house from the backyard. This evidence cannot be termed as contradiction. The circumstances brought out in the evidence of the prosecution clearly establish that, during the spot mahazar (Ex.P4), the mat containing blood (MO.3) and the pillow with blood stains (MO.1) on which the deceased was reclining were seized during the investigation. The seizure is also proved by the CRL.A.No.100210/2014 29 prosecution. This evidence once again lends corroboration to the testimony of PW9 to hold that the accused entered the house while the deceased was lying down on the mat and watching TV, thereby inspiring confidence to hold that PW9 was very much present during the incident and the accused committed the murder of the deceased as narrated by her in her evidence.
17. The argument of the learned counsel that PW9 has not named the accused does not impress us. Naturally, being the daughter, she has not referred him by name, but her evidence refers to the accused and it is recorded so in the deposition. The details brought out in the course of her cross-examination relate to the accused and not to any outsiders. There is no ambiguity whatsoever with regard to the identity of the accused. This contention therefore has no substance. The circumstances discussed above, when cumulatively CRL.A.No.100210/2014 30 considered, would lead to the only conclusion that PW9 is an eyewitness to the incident and she has given a truthful account of the incident before the Court and there is no reason whatsoever to doubt or disbelieve her evidence on the purported contradictions or inconsistencies highlighted by the trial Court. On considering her evidence in the context of the other material brought on record, we are of the firm view that the trial court has misdirected itself in rejecting the evidence of PW9. It has misread and misunderstood the evidence of PW9 which has resulted in gross failure of justice.
18. It is also relevant to note that in addition to the direct evidence of the eyewitness, the prosecution has let in other evidence which clearly establish the complicity of the accused in the murder of the deceased. The medical evidence produced by the prosecution lends corroboration to the testimony of PW9. As already CRL.A.No.100210/2014 31 stated above, PW9 has unequivocally stated before the court that the accused assaulted the deceased with the sickle on her chest, shoulder and stomach. As per the post-mortem report (Ex.P21), the deceased had sustained the following injuries, namely;
1. Incised wound on the neck Transversely from left side of the neck+(Rt) Side at (the level of C 5, 6 5) Length 8" X 1½" X3".
2. Incised wound on Left Pectoral regi. of chest 6"X3"X3" cavity deep.
3. Incised wound on (Lt) super clavicular regi. Head of the hymen exposed.
4. Incised wound on (Lt.) Deltoid 5" X 1" X 2".
5. Posterior Aspect of Neck below 7th clavicle vertebra incised wound 2½ "X1"X1" muscle deep.
6. (Lt.) side of sacral regin. Incised wound 1"X ½" .
7. (Lt.) side of glutted Region incised wound 4"
X 2" X2" muscle deep.
19. The evidence of PW9 with regard to the identification of the sickle is another factor which CRL.A.No.100210/2014 32 supports the case of the prosecution. It is proved in evidence that the said sickle (MO.6) was seized under the spot mahazar (Ex.P4). It was subjected to chemical examination and the FSL report (Ex.P28) certifies that the said sickle contained stains with 'B' group blood matching with the blood stains found on the clothes of the deceased. Likewise the shirt worn by the accused during the occurrence was seized on the same day and it is proved in evidence that the blood stains found therein are matching with the blood group of the deceased. There is no explanation by the accused as to the presence of these stains on his clothes.
20. Apart from the above circumstances, the evidence of PW1, the brother of the deceased, also establishes the fact that on the date of the incident, the accused had come over to his house and committed the murder of the deceased. This witness has also spoken about the antecedents of the accused and the motive for CRL.A.No.100210/2014 33 the commission of the offence which also deserves acceptance. The defence has not brought out any circumstance to disbelieve the evidence of PW1 regarding the fact that the accused was seen running away from the house after committing the murder.
21. The fact that the accused was caught near the house of PW1 on the date of the incident is established by the evidence of PW22, the PSI of Nippani Police Station. He is an independent witness. According to this witness, on 05.05.2012, at about 12.30 p.m., on receiving the information of murder, he along with PC 1857, PC 1937, PC 2390 and PC 2291 came to the spot and they found the accused in unconscious condition. Immediately he shifted the accused to the Government Hospital, Nippani and thereafter, he received the written complaint as per Ex.P1 and registered the case against the accused. This evidence indicates that at the earliest instance, the CRL.A.No.100210/2014 34 accused was implicated in the alleged incident and the overt acts committed by him find place in the complaint thereby lending credence to the testimony of PW1 with regard to the material aspects of the prosecution case. The fact that the accused was caught by the witnesses is also spoken to by PW9. Though the learned trial Judge has held that there is discrepancy in the time of arrest of the accused and the statement of PW9 in this regard cannot be believed, yet, it has come in evidence that the accused was immediately taken to Government Hospital, Nippani and was admitted as an inpatient.
22. The evidence of PW17 - the Medical Officer of the Civil Hospital, Belagavi confirms the fact that during the treatment of the accused his stomach contents were forwarded to the FSL and it was ascertained that he had consumed insecticide soon after the commission of the offence in an attempt to commit suicide. The evidence of the Tahsildar of Belagavi Taluk CRL.A.No.100210/2014 35
- PW18 indicates that on the basis of a requisition made by the Investigating Officer, he recorded the statement of the accused in the Civil Hospital, Belagavi as per Ex.P19. This witness has clearly deposed that the accused stated before him that after drinking alcohol and poison, he murdered his wife with the sickle. Undisputedly, the accused was not in the custody of the police as on the date of his examination by the Tahsildar. As such, even the statement made by him before the Tahsildar could be relied on as extra judicial confession. All these circumstances clearly point out to the guilt of the accused and convincingly establish the ingredients of the offences charged against him.
23. The trial Court has failed to consider all the above facts and circumstances of the case in proper perspective. It has misdirected itself in rejecting the evidence of the eye-witness examined by the prosecution. The trial Court has also erred in CRL.A.No.100210/2014 36 misreading the evidence of the prosecution witnesses and has committed manifest error in ignoring material evidence which has resulted in flagrant miscarriage of justice. The findings recorded by the trial Court are contrary to the material on record. Taking into consideration the totality of the aforesaid facts and circumstances and in view of the fact that the trial Court has returned the finding of acquittal by misreading the evidence of the material witnesses and on ignoring the material evidence, we are of the considered opinion that the impugned judgment suffers from patent illegality and perversity and therefore, cannot be sustained. We are convinced that the prosecution has adduced acceptable and reliable evidence in proof of the fact that on 05.05.2012, between 11.30 a.m. and 11.45 a.m., the accused trespassed into the house of PW1 and committed the murder of the deceased by inflicting fatal injuries on her with the sickle and thereafter, in an attempt to commit CRL.A.No.100210/2014 37 suicide, consumed poison, thereby establishing the guilt of the accused beyond all reasonable doubt, for the offences charged against him. As a result, the accused is liable to be convicted for the said offences punishable under sections 449, 302 and 309 of IPC.
Accordingly, we pass the following:-
ORDER Criminal Appeal is allowed. The impugned judgment and order of acquittal dated 10.07.2014 passed by the VII Addl. District and Sessions Judge, Belagavi at Chikodi, in S.C.No.343/2012 is set-aside.
The accused Sri.Ramesh Chandar Adake is convicted for the offences punishable under sections 449, 302 and 309 of IPC.
Sd/-
JUDGE Sd/-
JUDGE gab.bss.
CRL.A.No.100210/201438
SSJ & JMCJ: CRL.A.No.100210/2014
15.03.2018
ORDER ON SENTENCE
Heard the learned counsel for the appellant and the learned Addl. SPP on sentence.
2. Learned counsel for the accused makes a fervent plea for lenient view on the ground that the accused acted in desperation without any motive to kill the deceased. After the death of the deceased, his life has become all the more miserable and he is in his advanced age and he himself has performed the marriage of daughter and therefore, the sentence of imprisonment is likely to seriously affect the health and wellbeing of the accused and hence, he prays for a lenient view in awarding the sentence to the accused.
3. Learned Addl. SPP however submits that the offence proved against the accused calls for a stringent punishment. The circumstances proved in evidence establish that it was a premeditated and a despicable CRL.A.No.100210/2014 39 act. The petitioner even attempted to commit suicide with a view to escape from the legal punishment. Even during the life time of the deceased, he ill-treated her and misbehaved with the children. The conduct of the accused and the manner in which he committed the offence deserves the maximum punishment and hence, the learned counsel submits that he may be visited with the maximum punishment prescribed under law.
4. In so far as the right of the accused for personal hearing on sentence is concerned, following the decision of the Hon'ble Supreme Court of India in the case of SHANKAR KERBA JADHAV and Others Vs. STATE OF MAHARASHTRA in AIR 1971 SC 840 and the provisions contained in Sections 386(a) and 387 of Cr.P.C., we have held in Criminal Appeal No.100167/2014, disposed of on 16-02-2018 that where minimum punishment is proposed to be awarded, CRL.A.No.100210/2014 40 no opportunity of hearing need be afforded to the accused.
5. In the instant case, on considering the overall facts and circumstances of the case, the personal background and the antecedents of the accused, the motive for commission of the offence, the personality of the victim and the offender of the crime, we propose to award minimum sentence prescribed for the offence punishable under section 302 of IPC. Furthermore, the accused having taken part in the appeal through his counsel and being well aware of the fact that the Appellate Court is well within its competence to award life imprisonment, in our view, no opportunity of personal hearing need be afforded to accused.
6. We have taken into consideration the submissions made on behalf of accused by the learned counsel appearing for him. The circumstances proved CRL.A.No.100210/2014 41 by the prosecution clearly indicate that the act of the accused is a premeditated and a cold blooded murder. The intention of the accused could be inferred from the fact that, all the way from his house, he came to the house of PW.1 where the deceased was residing, armed with a sickle, with a view to murder the deceased and with this end in view, without any provocation by the deceased, he stabbed her repeatedly until she dropped dead. The location of the injuries and the force with which he inflicted those injuries as detailed in the judgment; clearly suggest that he was determined to cause her death. The subsequent conduct of the accused in consuming poison manifests that he had even foreseen the consequences of his act and therefore, to escape from the clutches of the law, he attempted to end his life. Whereas the victim was an innocent, helpless lady. She was at the mercy of the accused even during her lifetime and he did not even allow her to live peacefully in the house of her brother. All these facts CRL.A.No.100210/2014 42 and circumstances, in our view, call for stringent sentence. The circumstances pleaded by the accused cannot be considered as mitigating the rigors of the offences committed by him.
7. Considering all the above facts and circumstances of the case and having regard to the gravity of the offences and the manner in which the accused committed the said offences against his own wife, we find it just and proper to sentence the accused
- Sri. Ramesh Chandar Adake to imprisonment for life and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) for the offence punishable under Section 302 of IPC. In default of payment of fine amount, he shall undergo simple imprisonment for a further period of three years.
8. For the offence punishable under Section 449 of IPC, the accused is sentenced to rigorous imprisonment for a period of five years and to pay a fine CRL.A.No.100210/2014 43 of Rs.5,000/- (Rupees Five Thousand only). In default of payment of fine amount, he shall undergo rigorous imprisonment for a further period of one year.
9. For the offence punishable under Section 309 of IPC, the accused is sentenced to simple imprisonment for a period of one year without any fine.
10. The substantive sentences of imprisonment shall run concurrently and he shall be entitled to the benefit of set off for the period of detention undergone as under trial prisoner in terms of section 428 of Cr.P.C.
11. The bail bond of accused is cancelled. He shall surrender to serve the sentence, failing which the trial Court shall secure the accused under warrant and shall commit him to prison to serve the sentence as ordered herein.
CRL.A.No.100210/201444
Copy of this order be certified to the trial Court forthwith and a free copy of this order be served on the learned counsel appearing for the accused.
Sd/-
JUDGE Sd/-
JUDGE Bss.