Karnataka High Court
Sri. Venkatesh vs State Of Karnataka on 10 February, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 857 of 2017
C/W CRL.A No. 1684 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL No.857 OF 2017
C/W
CRIMINAL APPEAL No.1684 OF 2016
CRL.A. No.857/2017
BETWEEN:
1. SRI. VENKATESH,
S/O. LATE. CHINNAPPA,
AGED ABOUT 36 YEARS,
R/O. NALLANDAHALLI VILLAGE,
UTTANURU PANCHAYATH,
DUGGASANDRA HOBLI,
MULBAGAL TALUK,
Digitally signed by KOLAR DIST. 563131.
MALATESH K C ...APPELLANT
Location: High
Court of (BY SRI. B.V. SRINATH, ADVOCATE FOR
Karnataka
SRI NANJUNDA GOWDA M. R., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY KOLAR RURAL POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU 560001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
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CRL.A No. 857 of 2017
C/W CRL.A No. 1684 of 2016
CRL.A. No.1684/2016
BETWEEN:
1. SMT. RADHA @ RADHAMMA,
W/O VENKATESH,
AGED ABOUT 29 YEARS,
R/O NALLANDAHALLI VILLAGE,
UTTANURU PANCHAYATH,
DUGGASANDRA HOBLI,
MULBAGAL TALUK,
KOLAR DISTRICT-563131.
...APPELLANT
(BY SRI. B.V. SRINATH, ADVOCATE FOR
SRI NANJUNDA GOWDA M. R., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY KOLAR RURAL POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU 560001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
****
THESE CRIMINAL APPEALS ARE FILED UNDER SECTION
374(2) OF CR.P.C BY THE APPELLANTS/ACCUSED PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION DATED
17.08.2016 AND ORDER OF SENTENCE DATED 18.08.2016
PASSED BY THE PRINCIPAL SESSIONS JUDGE, KOLAR IN
S.C.No.40/2015 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 201
R/W 34 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR HEARING,
THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
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CRL.A No. 857 of 2017
C/W CRL.A No. 1684 of 2016
JUDGMENT
The appellants have filed the present Criminal Appeals against the judgment of conviction dated 17.08.2016 and order of sentence dated 18.08.2016 passed in Sessions Case No.40/ 2015 on the file of the Principal Sessions Judge, Kolar, convicting them to undergo imprisonment for life with fine of Rs.50,000/- each, in default, to undergo imprisonment for one year for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code, and to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/- each, in default, to undergo imprisonment for six months, for the offence punishable under Section 201 r/w Section 34 of the Indian Penal Code.
2. The appellant in Criminal Appeal No.857/2017 is the accused No.1 and appellant in Criminal Appeal No.1684/2016 is the accused No.2 in Sessions Case No.40/2015. It is the case of the prosecution that, accused No.2 is the legally wedded wife of accused No.1 and initially there was some difference of opinion between them. As such, accused No.2 deserted accused No.1 and during the said period of desertion, accused No.1 contracted second marriage with deceased Bengaluramma -4- CRL.A No. 857 of 2017 C/W CRL.A No. 1684 of 2016 and was residing with her in Nallandahalli village, Mulabagal Taluk, Kolar District. In the meanwhile, accused No.2 filed maintenance petition against accused No.1 and subsequently, the matter came to be settled and accused No.2 also joined accused No.1. As such, accused Nos.1, 2 and deceased Bengaluramma were residing in the house of accused No.1 at Nallandahalli. Accused No.2 and deceased Bengaluramma have two children each from accused No.1. Initially, the relationship between accused No.1 and deceased Bengaluramma was cordial. But, when accused No.2 rejoined accused No.1, the relationship got strained to some extent and in the result, both accused Nos.1 and 2 started to harass deceased Bengaluramma. It is further alleged that accused Nos.1 and 2 used to pester deceased Bengaluramma to bring money from her parents and later on, accused No.1 started to suspect her fidelity on the ground that she has some extra marital relationship with P.W.7-Anand, in whose land she was working as coolie.
3. When things stood thus, on 13.09.2014, accused Nos.1 and 2 hatched a plan to eliminate Bengaluramma and took her to the forest area of Thondala and while accused No.2 was -5- CRL.A No. 857 of 2017 C/W CRL.A No. 1684 of 2016 holding the hands of Bengaluramma, accused No.1 strangulated her on the suspicion that she had developed intimacy with P.W.7 and caused her death. Thereafter, in order to screen themselves from legal punishment, accused Nos.1 and 2 removed the clothes from the dead body of Bengaluramma and lit fire after pouring kerosene on the dead body, burnt it, in order to destroy the evidence and identity of the deceased. Thereafter, accused No.1 called P.W.3-Suresh and gave false information that, deceased Bengaluramma had visited Kempapura and did not return to Nallandahalli. Then, the complainant-P.W.1-Nagaraj, who is the brother of deceased Bengaluramma went to Nallandahalli and searched for her, but he could not trace. Then he lodged a missing complaint on 18.09.2014-Ex.P.3 in Mulabagal Police Station. Thereafter, during the morning hours on 21.09.2014, the forest guards found a dead body in Thondala forest, which was partially burnt and they reported the matter to their higher Officers and then the matter was reported to the concerned police station. P.W.1 filed the second complaint on 21.09.2014 as per Ex.P.1 suspecting the involvement of accused Nos.1 and 2 in the death of Bengaluramma. Accordingly, the jurisdictional police -6- CRL.A No. 857 of 2017 C/W CRL.A No. 1684 of 2016 registered a case for the offences punishable under Sections 302 and 201 r/w Section 34 of the Indian Penal Code. After investigation, the jurisdictional police filed the charge sheet against accused Nos.1 and 2.
4. The learned magistrate took the cognizance of the offences and supplied the prosecution documents as per section 207 of Cr.Pc. Since the matter is triable by the Sessions Court. Therefore the matter was committed to session court as per section 209 of Cr.Pc and then sessions court secured the presence of the accused and framed the common charge on 3rd August 2015 for the offences punishable under the provisions of Section 302 and 201 of IPC read with Section 34 of IPC the same was read over to the accused persons in the language known to them who pleaded not guilty and claimed to be tried.
5. In order to prove the case of the prosecution and guilt of the accused, the prosecution, in all, examined 15 witnesses P.W.1 to P.W.15 and marked material documents as Ex.P1 to Ex.P23 and material objects M.O.1 to M.O.10. After conclusion of the evidence of prosecution witnesses, the statements of the -7- CRL.A No. 857 of 2017 C/W CRL.A No. 1684 of 2016 accused persons, as contemplated under the provisions of Section 313 of Code of Criminal Procedure were recorded. The accused persons denied all incriminating circumstances and did not choose to lead oral or documentary evidence in support of their defence.
6. Based on the aforesaid pleadings, the learned Sessions Judge framed the following points for consideration:
1) Whether the prosecution proves that, accused No.1 being the husband of deceased Bengaluramma and accused No.2 being the 1st wife of accused No.1 hatched a plan to murder Bengaluramma, the 2nd wife of accused No.1 and on 13.09.2014 they took her inside 3-4 Kms of Thondala forest area and there both the accused caused death of Bengaluramma by strangulating her on suspicion that, she had developed intimacy with CW12 Anand by intentionally causing her death and thereby committed an offence punishable under section 302 r/w section 34 of Indian Penal Code?
2) Whether the prosecution further proves that, on the above said date, time and place after having caused the death of Bengaluramma by strangulation, which is an offence punishable under -8- CRL.A No. 857 of 2017 C/W CRL.A No. 1684 of 2016 section 302 of IPC caused the evidence connected with the said offence to disappear by removing the clothes found on the dead body of Bengaluramma and burnt the dead body partially in order to destroy the evidence and identity of the deceased and thereafter gave false information by calling CW4 claiming that, Bengaluramma had visited Kempapura village and not returned to Nallandahalli village with an intention to screen themselves from legal punishment and thereby committed an offence punishable under section 201 r/w section 34 of Indian Penal Code?
7. Considering both oral and documentary evidence on record, the learned Sessions Judge recorded the finding that the prosecution proved beyond all reasonable doubt that the Accused No.1 being the husband of the deceased and Accused No.2 who is first wife of the Accused No.1, hatched a plan to murder Bengaluramma, second wife of the accused No.1 on 13/09/2014 and took her 3 kilometers inside the forest area of Tondala and thereby, both accused caused death of Bengaluramma by strangulating her, on the suspicion that she had developed illicit intimacy with C.W.12-Anand, thereby, committed the offence punishable under the provisions of Section 302 and 201 read with Section 34 of IPC. Further the -9- CRL.A No. 857 of 2017 C/W CRL.A No. 1684 of 2016 learned Sessions Judge recorded the finding that in order to screen the offence, the accused Nos.1 and 2 removed the clothes from the dead body of deceased and burnt the dead body partially in order to destroy the evidence and identity of the deceased. Thereafter Accused No.1 gave a false information by calling C.W.4-Suresh that deceased Bengaluramma had visited Kempapura and did not return to Nallandahalli village only with an intention to screen themselves from the legal punishment. Thereby, committed an offence under Sections 302 and 201 read with Section 34 of IPC. The learned Sessions Judge, by the impugned judgment of conviction and order of sentence dated 17th August 2016, convicted both the accused for imprisonment for life with fine of Rs.50,000/- each under the provisions of Section 302 read with Section 34 of IPC and 3 years with fine of Rs.5,000/- each for the offence punishable under the provisions of Section 201 read with Section 34 of IPC with default clause.
8. We have heard the counsel for the parties.
9. Shri.Srinath.B.V, learned counsel for the appellants- accused Nos.1 and 2 contended with vehemence that the
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 impugned judgment of conviction and order of sentence passed by the Sessions Judge convicting the accused under the provisions of Sections 302 and 201 read with Section 34 of IPC is illegal, perverse and contrary to the record, cannot be sustained and is liable to be set aside. He would further contend that the learned Sessions Judge proceeded to convict the accused based on unfavourable surmises and conjectures when there is no convincing evidence on record. The learned Sessions Judge has not scrutinized the evidence on record in its proper perspective and erroneously recorded a finding that there is a corroboration between statement of witnesses and medical evidence. He would further contend that there are lot of inconsistencies in the statement of witnesses and medical evidence. Therefore, the learned Sessions Judge ought to have acquitted the accused persons for the offence charged against them.
10. He would further contend that the learned Sessions Judge erroneously appreciated the evidence of P.W.1 who is the complainant and brother of the deceased. According to him, deceased and accused No.1 loved each other about 7 years back and got married. Subsequently, she came to know that
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 Accused No.1-Venkatesh is married to the accused No.2-Radha, who is the first wife and there were some differences between Venkatesh and Radha. Hence, she was in her parents' house, said Radha, first wife had filed a maintenance petition against Accused No.1 and the matter was compromised. Thereafter, both the wives were residing together with Accused No.1 and they have got 2 children each out of the marriage. It is further stated by him that she was subjected to cruelty and demand of dowry. Accordingly, he has paid Rs.10,000/- during the year 2014 when she came to parental house for Gowri-Ganesha festival. The said evidence is not corroborated by any other evidence. Thereby, the learned Sessions Judge was not right in convicting the Accused Nos.1 and 2 merely on the basis of evidence of P.W.1. The complainant further contented that admittedly the incident happened on 13.09.2014 and the missing complaint was given on 18.09.2014 and subsequently, second complaint is filed on 21.09.2014. There was a delay of 5 days and the same has not been explained. The entire case of prosecution is based on the circumstantial evidence. The said aspect of the matter has not been considered by the learned Sessions Judge.
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016
11. Learned counsel for the appellants would further contend that the way in which P.W.6 has given evidence regarding last seen theory is doubtful. The overall evidence on record does not clearly depict the involvement of the accused persons in the homicidal death of the deceased and there were two views possible. If two views are possible, then view that fvaours the accused has to be taken. The said aspect of the matter is also not considered by the learned Sessions Judge while convicting the accused for the offences punishable Under Section 302 and 201 read with Section 34 of IPC. Therefore, he sought to allow the appeals.
12. In support of his contention, the learned counsel for the appellants relied upon the dictum of the Supreme Court in the case of SAHADEVAN AND ANOTHER vs. STATE OF T.N reported in 2012 AIR SCW 3206 with regard to the last seen theory wherein it has been held that last seen theory itself is not sufficient to hold the accused guilty of the offence.
13. Per contra, Sri. Vijayakumar Majage, learned Additional SPP for the State while justifying the impugned judgment of conviction and order of sentence would contend that though the
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 incident happened on 13.09.2014, same was informed by the accused No.1 to P.W.3 on 15.09.2014 who informed the same to the complainant-PW1. After thorough search for the deceased, on 18.09.2014, a missing complaint was lodged. Therefore, there is no delay as contended by the learned counsel for the appellants. It is further contended that though the doctor-P.W.11 has deposed that he is not in a position to identify the body as it was in a decomposed state, but the evidence of P.W.1 who is the brother of the deceased, P.W.8- villager and P.W.9-father of the deceased identified M.Os.1 to 4
- bangle pieces, one lime box, one chappal and coral bead and M.O.7-burnt blouse piece secured from the place where decomposed body was found. Thereby the identity of the body of the deceased is established. He would further contend that P.W.6 who has last seen the deceased with the accused Nos.1 and 2 has deposed in categorical terms that accused Nos.1 requested him to give his bike in order to take his two wives to bank at Uthanooru on 13.09.2014 and later, while returning, only accused 1 and 2 were there on the bike. Deceased Bangaluramma, the second wife of the deceased had not returned. When enquired, Accused No.1 told that she went to
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 her native place. In the cross-examination, he has stated that the accused informed the same over phone. He would further contend that P.Ws.5 and 6-the major witnesses and P.W.4- panch witness as per Ex.P4 and Mahazar, witness as per Ex.P2- mahazar, have supported the case of the prosecution and recovered M.Os 1, 3, 4, 7, 8 and 9 are identified by P.Ws.1, 8 and 9.
14. He would further contend that from the evidence of P.W.6 and P.W.7, nothing could be elicited about the illicit relationship between the deceased Bengaluramma and P.W.7. Admittedly, no independent witness from the village has been examined to prove the illicit relationship of the deceased with P.W.7. He would further contend that as stated by the PW-5 in his examination in chief that MO5-plastic box and MO10-plastic bottle were recovered at the instance of the accused and MO7- burnt blouse pieces recovered clearly depicts that the accused Nos.1 and 2 have commited the homicidal death of the deceased and also they have tried to destroy the evidence. Thereby the learned Sessions Judge is justified in convicting the accused under the provisions of Sections 302 and 201 read
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 with Section 34 of IPC. Therefore, he sought to allow the appeal.
15. In view of the rival contentions urged by the learned counsel for the parties, the only point that would arise for consideration in the present appeal is:
"Whether the accused persons in both the appeals have made out a case to interfere with the impugned judgment of conviction and order of sentence convicting the accused for imprisonment of life under the provisions of Section 302 of IPC and 3 years under the provisions of Section 201 of IPC with fine with default clause in the facts and circumstances of the present case?"
16. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, including original records, carefully.
17. This court being the appellate court, it is relevant to re- appreciate the entire material on record along with the evidence of the prosecution witnesses and the documents relied upon.
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016
"a) P.W.1-Nagaraja, who is the brother of the deceased and complainant has deposed on par with the second complaint lodged on 21.09.2014 and further deposed that deceased Bengaluramma is the younger sister and she is the second wife of accused No.1 and accused No.2 is the first wife of Accused No.1. Nine years back, their marriage was solemnized and all the three were residing in Nallandahalli village. He also deposed that the accused No.1 used to ill-treat the deceased by demanding money.
He also deposed that Accused No.1 called P.W.3 on 15.09.2014, enquired regarding Bengaluramma visiting his place and got an answer that she had not visited, as such, could not find her even after lapse of 2 days and lodged a missing complaint in this regard as per Ex.P3. He contended that on 20.09.2014, in Tondala forest area, a dead body was found. He visited the spot and has identified the dead body as that of his sister and lodged a complaint on 21.09.2014 as per Ex.P1. He further deposed that initially he had filed a missing complaint. He expressed his suspicion against the accused and the police brought the accused to the spot. At the instance of
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 accused, MO10-plastic bottle was recovered and drawn mahazar as per Ex.P2. In the cross-examination, it is elicited that they did not attend the marriage of deceased, but he claimed that marriage was performed in a temple and he was informed about the same. In the cross-examination, he has clearly deposed that the deceased was married to Accused No.1. It is specifically deposed that on 15.09.2014, he received a phone call from the accused and he visited Nallandahalli village on 16.09.2014, but there is no explanation on the part of the accused as to how they came to know about missing of deceased Bengaluramma. On 15.09.2014, accused No.1 gave information that she had been to Kempapura village. Therefore, the accused No.1, with whom the deceased was staying, has to give information as to under what circumstances, P.W.1 lodged the complaint. The case of the prosecution is supported by P.W.2, who is the cousin brother of the accused No.1 and his wife-
Ventakaratnamma, who is the sister of Accused No.1.
b) P.W.2 would clearly depose that he has not performed marriage of accused No.1 and he came to know from the
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 deceased that accused No.1 used to pester her for bringing money from her parents. In the cross- examination of P.W.1 and P.W.2, there is no denial of the fact that dead body found in the forest was that of Bengaluramma. Thereby, he supports the case of the prosecution.
c) P.W.3-Suresha is the brother of P.W.2 and brother-in- law of Ventakaratnamma. He has deposed that on 15.09.2014, accused No.1 called him and enquired about Bengaluramma visiting Kempapura village and got an answer that she did not visit Kempapura village. In the cross-examination, it is elicited that the complainant was facing a trial. It is also elicited from the evidence of P.W.3 about the visit of Bengaluramma to Kempapura village during Gowri-Ganesha festival and there is no evidence to show that P.W.3 was making a false statement against the accused.P.W.3. He clearly deposes that on 21.09.2014, he could not identify the dead body of the deceased as it was in a decomposed state. Though it is not identified by P.W.3, but the identification was not
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 disputed by the prosecution. Thereby, he supports the case of the prosecution.
d) P.W.9 and P.W.10 who are forest guards, have deposed that on 21.09.2014, they found the dead body of a woman and they reported the matter to the higher officer. Later, on 21.09.2014, P.W.12-Police Constable visited the spot and taken photographs of the dead body and other items. He has also identified the photographs at Ex.P5 to Ex.P14.
e) P.W.14 and P.W.15 are the investigating officers. Nothing is elicited from the cross-examination of these witnesses so as to disbelieve their evidence. At instance of accused No.1, one plastic box was seized from the spot and it was suggested that he did not know the contents of Ex.P2-mahazar and it was admitted by him. It was suggested to PW.5-villager that the material object- M.O.5-plastic box and other material objects were not near the dead body, but were at a far away distance in a bush; the said suggestion was admitted by him. It is
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 admitted that Ex.P2 was drawn in his presence. Thereby he supports the case of the prosecution.
f) PW.6-circumstantial witness, has deposed that that the accused No.1 contracted second marriage with Bengaluramma and later was residing with his both wives and children at Nalladahalli. On 13.09.2014, Accused No.1 had borrowed his bike to go to Bank along with his two wives, but while returning the bike, only Accused No.2 was with Accused No.1. When he asked Accused No.1 why Bengaluramma did not return, Accused No.1 told that she had gone to Kempapura village. Thus, he supports the prosecution case. In the missing complaint, P.W.1 has specifically stated that accused No.1 contacted him over phone about missing of deceased Bengaluramma. The prosecution has conducted lengthy cross-examination. Evidence of P.W.6clearly goes to show that deceased Bengaluramma did not return to village, which fortifies the fact that Accused Nos.1 and 2 only returned on the bike and deceased Bengaluramma was not seen in the company of the accused. Thereby, he supported the case of the prosecution. P.W.7 who is a
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 circumstantial witness against whom the accused No.1 made an allegation that his wife Bengaluramma had illicit relationship with PW.7-Anand. PW.7 has specifically deposed before the court that the deceased Bengaluramma was working in his land and he has denied the illicit relationship between the deceased and himself. Admittedly, though a defence was taken with regard to illicit relationship between deceased and PW.7, in order to prove the defence, Manjamma and Venkatamma who were working along with her are not examined. It is also not in dispute that deceased Bengaluramma along with Manjamma and Venkatamma was working in the land of P.W.7 and other lands also. Thereby, he supports the case of the prosecution.
g) P.W.8-Doddavenkateshappa, another circumstantial witness and villager of Nallandahalli has deposed that accused No.1 had married Bengaluramma and he identified dead body of deceased. When a suggestion was made to the said witness that the dead body was not in a position to be identified, with the help of the material objects found in and around the spot, the dead body can
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 be easily identified as that of Bengaluramma. It is very incidental that though the dead body was not identified, the material objects found near the spot have not been disputed by the supporting witnesses. It is the case of the prosecution that PW.9-father of the deceased and complainant also deposed with regard to his deceased daughter contracting second marriage with accused No.1. He has also deposed about her dead body being traced at the forest and further deposed that on the basis of the material objects-Tali, plastic box, bangle pieces, chappal and coral, burnt blouse piece, the dead body came to be identified as that of Bengaluramma. No suggestion was made to PW.9 that dead body was not of Bengaluramma. During the course of cross-examination, it is elicited that one week prior to her death, she had visited Kempapura and thereafter, she returned to Nallandahalli and was missing. A suggestion was made that deceased did not visit him, which was denied by P.W.9, father of the deceased. Thereby, he has supported the case of the prosecution. P.W.11-Dr.H.S.Raghunathareddy is the Medical Officer who conducted post mortem of dead body
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 of Bengaluramma. He has deposed that the dead body was partially skeletalized with scalp hair, skull being exposed in most parts and in occipital area, decomposed tissues were present. He has also deposed that, part of right foot, left forearm, left hand bones were missing and maggots were present. He has further deposed that brain was liquified and chest, abdomen and genital organs were decomposed. He has further deposed that viscera, decomposed neck structure and pelvic portion were sent for DNA analysis. His evidence clearly discloses that the time of death was more than 5 to 7 days and it supports the case of the prosecution that deceased Bengaluramma was missing from 13.09.2014 and post mortem was conducted on 22.09.2014. He has also deposed that cause of death was undetermined. He has also issued Ex.P18-post mortem report. Thereby, he has supported the case of the prosecution.
h) PW13-Shankarappa is the Sub-Inspector of the Police of Mulbagal police station who received missing complaint on 18.09.2014 at 2.30 pm regarding missing of deceased and registered FIR as per Ex.P19 and complaint is at
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 Ex.P3. He has deposed that the dead body was traced at Tondala forest and he informed the complainant regarding the same for identifying the dead body. He has further deposed that he visited Nallandahalli along with Sub-Inspector of Kolar Rural Police Station and Accused No.1 fled away from the spot.
i) PW14-Devandrappa, Sub-Inspector of Kolar Rural Police Station has deposed regarding lodging of complaint as per Ex.P20 on 21.09.2014 and he visiting the spot on 22.09.2014 and drawing of mahazar. Nothing is elicited in his statement to disbelieve the case of the prosecution.
j) P.W.15-Sudhakara, Sub-Inspector of Police who conducted the investigation, submitted the charge sheet. Based on the aforesaid material on record, learned Sessions Judge has proceeded to convict the accused.
18. It is not in dispute that marriage between Accused No.1 and Accused No.2 was solemnized and out of the wedlock, two children were born. There were some differences and accused No.2 was living in her parents' house. Thereafter, Accused
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 No.1 married deceased Bengaluramma. Accused No.2 had filed a case against Accused No.1, later it was compromised and all the three were residing together at Nallandahalli along with their children. On the premise that deceased had extra-marital relationship with P.W.7, Accused No.1 was harassing the deceased. Accused No.1 was suspecting her fidelity and hatched a plan with Accused No.2 to kill deceased Bengaluramma and took her to Tondala forest and killed her. P.W.1-brother and P.W.9, father of the deceased have identified MOs.1, 3, 7 and 10 as belongings of deceased, thus, have identified the dead body. PW.7 has deposed that deceased Bengaluramma was working in his land and others' lands on daily coolie basis along with Manjamma and Venkatamma. Manjamma and Venkatamma have not been examined to prove the illicit relationship between the deceased and P.W.7. No other independent witness is examined in this regard. It is also not in dispute that Accused Nos.1 and 2, along with deceased, were residing in Nallandahalli along with children. P.W.5- circumstantial witness has identified MO.5-plastic box. PW4- forest guard who found the dead body in the forest has identified MOs.1, 3, 4, 7, 8 and 9. Nothing has been elicited in
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 his cross-examination to disbelieve that the dead body was not that of deceased Bengaluramma.
19. It is very interesting to note that when Accused No.2-first wife was still alive, merely because there was some difference of opinion, accused No.1 contracted second marriage with deceased Bengaluramma, which is illegal and in contravention of the provisions of Hindu Law. Though initially Accused No.2 had filed maintenance case against Accused No.1 and was living with her parents, later it was compromised and Accused No.1 started living with both the wives along with children. Accused No.1 had two children each from both wives. Both Accused Nos.1 and 2 started harassing and pestering deceased Bengaluramma for money. P.W.1-brother of deceased, P.W.3- cousin of Accused No.1, P.W.5-villager who is a mahazar witness as per Ex.P2 and P.W.9-father of deceased, were examined. They have identified the material objects, M.O.S.1, 3, 4, 7, 8 and 9 - bangle pieces, one chappal, one coral bead, burnt blouse piece, sample mud, mud secured from spot and plastic bottle, which were recovered by PW.8 and PW.9. Nothing has been elicited in the cross-examination to disbelieve that the dead body was not that of deceased Bengaluramma.
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016
20. Though it was alleged by accused that there was illicit relationship between the deceased and P.W.7-Anand, no independent witness has been examined to prove the same. The prosecution case is that the accused persons were harassing deceased Bengaluramma for money and Accused No.1 was suspecting the fidelity of deceased Bengaluramma. On the date of the incident, i.e., on 13.09.2014, on the pretext of opening an account in the Bank, Accused Nos.1 and 2 hatched a plan and conspired to kill the deceased and took her to Tondala forest area. Thereafter, Accused No.1 strangulated the deceased with the help of Accused No.2. In order to screen the offence, they have burnt the material objects and hid them in a bush.
21. It is also not in dispute that P.W.11-Dr.Raghunatha Reddy, medical officer who conducted post mortem and prepared post mortem report as per Ex.P18, has deposed that he was not in a position to identify the dead body, but from the evidence of PW.1-brother, PW.3-cousin of PW.1, PW.5-villager and PW.9-father, who have identified the material objects as that of deceased-Bengaluramma, and the same is not disputed by the defence counsel nor it is elicited from the cross-
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 examination that the dead body was not that of deceased Bengaluramma. It is also relevant to state at this stage that P.Ws.1 to 3 have specifically stated on oath that the Accused Nos.1 and 2 were demanding money from deceased Bengaluramma. Ex.P21 and Ex.P22-FSL reports clearly depict that the sample found in Article No.4 is positive for kerosene with blue coloured dye and for Article No.3 is negative for kerosene residues. Though the Officer was not examined by the prosecution, it was marked through P.W.15, which is permissible in view of the provisions of Section 293 of Cr.P.C., which reads as under:
293. Reports of certain Government scientific experts.
(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely:-
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Inspector of- Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director 1 , Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.
22. It is relevant to consider that once the Court accepts the document issued by the competent authority as mentioned under the provisions of Section 293 of Cr.P.C. as a valid evidence without examining the author of the said document, such competent authority may depute any other Officer conversant with the facts of the case. Therefore, the
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 contention of the learned counsel for the appellant that as the FSL Expert being not examined, hence the report cannot be accepted and the said contention is not acceptable. It is also relevant to state at this stage that P.W.1 specifically stated on oath that he has received information from P.W.3 that he received a call from Accused No.1 on 15.09.2014. P.W.3 who received the phone call has claimed that he visited Nallandahalli village and enquired about his sister, as only Accused Nos.1 and 2 were alone in the house. There was no explanation on the part of the accused that the material objects produced before the Court are forming part of same transaction as contemplated under the provisions of Section 6 of the Evidence Act. Thereby, it cannot be stated that the evidence of P.W.1 and P.W.3 cannot be relied upon and cannot be accepted.
23. It is also relevant to state at this stage, when the initial burden is proved by the prosecution by producing oral and documentary evidence on record that as on the date of the incident, as stated by P.Ws.1, 3, 7, 8 and 9, Accused Nos.1 and 2 and deceased were residing together in the house of Accused No.1 at Nallandahalli. It was the duty of the husband to explain what happened to his wife, whereas he has not at all
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 lodged any complaint as contemplated under the provisions of Section 106 of the Evidence Act. It is also relevant to state that while recording the statement of Accused as contemplated under the provisions of Section 313 of Cr.P.C., the accused has not offered any explanation as to how deceased was missing and how she died. In view of the provisions of Section 106 of the Evidence Act and the dictum of the Hon'ble Supreme Court reported in Prahlad -vs- State of Rajasthan reported in (2020)1 SCC (Crl.) 381, wherein the Hon'ble Supreme Court held at paragraph-11 as under:
11. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C as to when he parted the company of the victim.
Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.
24. We are of the considered opinion that in view of the law laid down in SAHADEVAN CASE SUPRA, prosecution can rely upon last seen theory when there is corroborative evidence. In
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 the facts and circumstances of the present case, there is sufficient evidence to corroborate with last seen theory to believe the case of the prosecution.
25. The material on record clearly discloses that Accused No.1 was married to Accused No.2. There was some difference between them and Accused No.2 was residing with her parents. When his first wife was alive, in order to fulfill his lust, he married with deceased Bengaluramma. Thereafter, he made vague allegations against the deceased that she had illicit relationship with P.W.7-Anand and committed the barbaric act of killing his wife. There is no remorse in the entire statement of accused recorded under the provisions of Section 313 of Cr.P.C. Therefore, no leniency can be shown to accused Nos.1 and 2. Unfortunately, on the date of the incident, i.e., on 13.09.2014, on the pretext of opening an account in the Bank, Accused Nos.1 and 2 hatched a plan to kill the deceased and took her to Tondala forest area. Accused No.1 strangulated deceased with the help of Accused No.2. In order to screen the offence, they burnt the material objects and hid them in a bush. According to Section 106 of the Evidence Act, the
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CRL.A No. 857 of 2017C/W CRL.A No. 1684 of 2016 material objects also provide additional link to the chain of circumstances against Accused Nos.1 and 2.
26. For the reasons stated above the point raised in the appeal is answered in negative holding that the accused have not made out any case to interfere with the impugned Judgment and order of sentence convicting the accused under Sections 302 and 201 of IPC.
27. In view of the above discussion, we pass the following:
ORDER
(i) Criminal Appeal No.857/2017 filed by Accused No.1 and Criminal Appeal No.1684/2016 filed by Accused No.2 are hereby dismissed as being devoid of merits.
(ii) The impugned Judgment of conviction and order of sentence convicting Accused Nos.1 and 2 for imprisonment of life with fine of Rs.50,000/- each and in default of payment of fine to undergo further imprisonment for a period of one year for the offence punishable
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under the provisions of Section 302 read with Section 34 of Indian Penal Code and rigorous imprisonment for a period of three years with a fine of Rs.5,000/- each and in default of payment of fine to undergo further simple imprisonment for a period of 6 months for the offence punishable Under Section 201 read with Section 34 of IPC is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE Paras 1 to 3 KCM, 3 to end BNV