Bangalore District Court
State By Kamakshipalya P.S vs Kailashchandra Behara on 23 January, 2023
KABC010323832018
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 23RD DAY OF JANUARY, 2023
PRESENT:
Sri Manjunatha, B.A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
SC No.1891/2018
Complainant State by Kamakshipalya P.S.,
(By the learned Public Prosecutor)
AND
Accused Kailashchandra Behara,
S/o Bainder Behara, a/a 28 years,
R/o Mirzapur, Gudugodiya Post,
Basudevapura Police Station,
Bhadrak District, Orissa State.
(By Sri GNC, Advocate)
*****
Date of offence & time 19.06.2018 8.00 - 14.00 hours
Date of report of offence 19.06.2018 23.30 hours
Date of arrest of the accused 24.06.2018
Date of release on bail Accused is in Judicial custody
Total period of custody
Name of the complainant Sri Muniyappa
Date of commencement of 20.03.2021
recording of evidence
Date of closing of evidence 19.10.2022
Offences complained off U/s.302 and 201 of IPC
Opinion of the Judge Accused found guilty
2 S.C.No.1891/2018
JUDGMENT
This case is the result of charge sheet filed by the complainant Police against the accused for the offences punishable under Section 302 and 201 of Indian Penal Code in Kamakshipalya P.S., Crime No.297/2018.
2. The prosecution was set into motion against the accused on the information of C.W.1 Muniyappa, who is the landlord of the place of occurrence. The case of prosecution is that the accused and deceased Smt. Malathi Sahu were husband and wife. The accused and his wife, i.e., deceased were living in a rental house belonging to the complainant situated at Kamakshipalya, Kaveri Nagar, Bengaluru. Further it is the case of the prosecution that the accused suspected fidelity of his wife when he found his wife regularly chat in the mobile and picked up quarrel with deceased for having spent Rs.1,000/- out of Rs.2,500/-, which he had kept to pay his father. And the accused with intention and knowledge of causing murder of the deceased on 19.06.2018 in between 8.00 a.m. and 2.00 p.m. the accused murdered his wife by smothering with the help of pillow and covering the dead body with bed sheet attempted to destroy the evidence. Accordingly the complainant police have registered case in crime No.297/2018 based on the information of Sri. Muniyappa, son of Kempathimmaiah against the accused for the offences punishable U/s.302 and 201 of Indian Penal Code. Thereby the 3 S.C.No.1891/2018 accused committed murder of the deceased and attempted to destroy the evidence, hence the accused charge sheeted for the alleged offences.
3. Based on the information of C.W.1 Muniyappa the complainant police registered a case in Crime No.287/2018 for the offences punishable U/s.302 and 201 of IPC and took up investigation. The accused was arrested and produced before jurisdictional Magistrate, he was remanded to judicial custody. After completion of investigation they filed charge sheet against the accused for the said offences. as stated herein above. The accused appeared through the counsel before the learned Magistrate. The learned Magistrate furnished copy of the charge sheet to the accused and hence, the provision of Sec.207 of Cr.P.C. was complied with. As the offence charge sheeted against the accused is exclusively triable by this Court, the learned Magistrate acting under Sec.209 of Cr.P.C. has committed this case to this Court for trial. Hence, the matter is taken up before this Court for further proceedings accordingly.
4. The accused has been in judicial custody. As per the direction of this Court, he has been produced before this Court. After hearing the learned Prosecutor and also the learned counsel for accused, as there are sufficient materials against the accused for the alleged offences, this Court on 17.02.2021 has framed charge against the accused for the offences punishable U/s.302 and 201 of IPC. The accused pleaded not guilty of the said offence and he has claimed to be tried of the offences charged.
4 S.C.No.1891/20185. In support of the case of prosecution, the prosecution has examined in all 15 witnesses as P.W.1 to P.W.15. The prosecution has produced 23 documents at Exs.P.1 to P.23 and got identified Material Objects MOs1 to MO6. After closing of the evidence of prosecution witnesses, on 24.11.2022 this Court has recorded the statement of the accused U/s.313 of Cr.P.C. in which the accused has denied the incriminating materials forthcoming against him in the evidence of prosecution witnesses and the accused has not chosen to adduce any defence evidence.
6. Heard the arguments of both the sides and perused the materials on record.
7.The points that arise for consideration of this Court are:
1. Whether the prosecution proves beyond all reasonable doubt that the accused being husband of the deceased on 19.06.2018 in between 8.00 a.m. to 2.00 p.m. in the rented house belongs to Cw.1 Muniyappa situated at 11th Cross, 4th Main Road, Kaveripura, within the limits of kamakshipalya P.S., Bangalore, by suspecting her fidelity picked up quarrel with deceased with regard to spent of Rs.1,000/-
which he had kept to pay his father, with intention of causing death or with the knowledge by such act likely to cause death by smothering with help of pillow murder his wife-Smt. Malathi 5 S.C.No.1891/2018 Sahu and thereby the accused has committed the offence punishable U/s.302 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that the accused being husband of the deceased on the place date and time above mentioned by suspecting picked up quarrel with deceased with regard to spent of Rs.1,000/- which he had kept to pay his father, with intention of causing death or with the knowledge by such act likely to cause death by smothering with help of pillow murder his wife- Smt. Malathi Sahu and later by covering the dead body of Smt. Malathi Sahu, with bed sheet attempted to destroy the evidence and thereby the accused has committed the offence punishable U/s.201 of IPC?
3. What order?
8. This Court has answered the above points are as hereunder:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: As per final order for the following:6 S.C.No.1891/2018
REASONS
9. Points No.1 and 2: Both the points are taken up for consideration together for convenience and also for avoiding repetition of discussion on the facts of the case and also regarding point of law.
10. It is not in dispute that the deceased is wife of the accused. It is also not in dispute that as on the date of death of the deceased, she was residing with the accused at house situated at Kamakshipalya, Kaveri Nagar, within the limits of complainant police. The offence charged against the accused is punishable U/s.302 and 201 of IPC. Whether the prosecution proves that the accused being husband of the deceased on 19.06.2018 in between 8.00 a.m. and 2.00 p.m. in the rented house belongs to CW.1 Muniyappa situated at Kamakshipalya, Kaveri Nagar within the limits of Kamakshipalya P.S., Bengaluru by suspecting her fidelity picked up quarrel with deceased with regard to spent of Rs.1,000/- which he had kept to pay his father, with intention of causing death or with the knowledge by such act likely to cause death by smothering with help of pillow murder his wife-Smt. Malathi Sahu and covered the dead with the bed sheet and attempted to destroy the evidence and thereby murdered his wife Smt. Malathi Sahu.
11. As stated herein above, the prosecution against accused was set into motion on the information of Sri Muniyappa, who is the land lord, where the accused residing along with deceased-Smt. Malathi Sahu. The informant is 7 S.C.No.1891/2018 examined as PW.1. PW.1 Muniyappa being the informant deposed in his evidence that he is the landlord of the house situated at 11th Cross, Kaveripura, Kamakshipalya, Bangalore. PW.2 Smt. Lakshmamma is his wife, he has rented out a portion of house to the accused and deceased-Smt. Malathi Sahu. The accused and deceased-Smt. Malathi Sahu were residing since 8 months in the said portion of house. One day in the afternoon he came to home and found that the accused was locking his house and going outside with kit bag, he has casually enquire the accused and the accused told him that his father came to Bangalore, he is going to arrange a room to his father. The accused did not return till evening 7.30 p.m. There was no light in the rented house of the accused. He suspected the absence of the accused and saw inside the house of the accused through window and found the wife of the accused deceased-Smt. Malathi Sahu was in a sleeping position on the floor covered with bed sheet, he called her, but there was no response. Therefore, he immediately informed to the concerned police. The concerned police came to the spot and opened the door, wife of the accused Smt. Malathi Sahu found dead, her bangles were broken and he came to know that she was murdered by pressing pillow on her face and the pillows used for murder was there. The concerned police seized the broken bangles, bed sheet, pillow and collected photographs. He filed complaint marked as Ex.P1, Spot mahazar marked as Ex.P2. He identified the photographs marked as Ex.P3 to P8. MO1 is the pillow and MO2 are the broken Bangales. Ex.P1 8 S.C.No.1891/2018 complaint filed by PW.1 on 19.06.2018 at 11.30 p.m. FIR has been forwarded to the jurisdictional Magistrate on 20.06.2018 at 1.30 a.m. there is no delay in forwarding FIR to the jurisdictional Magistrate. During cross-examination he admits that there was no agreement between him and the accused. On the date of incident he along with his wife went outside and came back at 1.30 p.m. the accused was locking the door and went outside. The jurisdictional police first visited the place of occurrence, and thereafter received his complaint. Door of the rented house of the accused was broken and in that regard photographs were collected. He puts his left thumb impression on Ex.P2 Mahazar in the place of occurrence. He does not know the contents of Ex.P1 and P2 documents, seizure of material objects under Ex.P2 Mahazar has been denied by the learned counsel for the accused.
12.PW.2 Smt. Lakshmamma, wife of PW.1 identified the accused through VC and stating that the accused as well as the deceased were residing as tenants in the house belongs to them since one year before the death of Smt. Malathi Sahu. The accused as well as deceased were working at Garment Factory. Their child was sent to village before the incident. She is not aware about the matrimonial relationship between the accused and deceased. The rented house of the accused was locked from outside and complaint was given by suspecting something has happened. The jurisdictional police came and break open the door and found the dead body of the wife of the 9 S.C.No.1891/2018 accused. She identified the photographs of place of occurrence marked as Ex.P3 to P8. Existence of houses of PW.1 and accused can be identified in the potographs. The learned Public Prosecutor has treated PW.2 as hostile witness and cross- examined at length. She admits that she gave statement before police to the effect that accused and deceased were quarreling each other. However, she denied that she saw the accused locking the door outside and went away at about 2.00 p.m. with a bag. But she admits that her husband saw the accused locking the door and going outside at about 2.00 p.m. when she and her husband returned to home. She saw the deceased through window in a sleeping position on the floor, covered the body with bed sheet. During cross-examination by the learned counsel for the accused she further deposed that on the date of incident she came home at 2.30 p.m. after selling the flowers. She reiterated that the accused and deceased were quarreling each other when they were residing in the rented house. Nothing has been elicited from the mouth of PW.2 to disbelieve that she returned home in the after noon and found the door of the rented house of the accused locked and dead body of deceased-Smt. Malathi Sahu found at about 7.30 p.m. Thereafter information was given to the jurisdictional police.
13.PW.3 Shivaprakash owner of Mosquito Knitting factory deposed in his evidence that the accused was working in his factory since 2018 and he was residing in the rented house 10 S.C.No.1891/2018 provided by him. On 17.06.2018 at 9.30 a.m. accused came to factory and obtained his week salary of Rs.2,500/-, thereafter on 18.06.2018 the accused attended his work and on 19.06.2018 at 6.30 a.m. the accused attended the work till 9.00 a.m. and thereafter he went to have tiffin. Once again the accused came back at 10.00 a.m. and left the factory at 10.30 a.m. Thereafter he did not attend the work. On the same day at about 8.00 p.m. the landlord of the rented premise, where the accused was staying, telephoned him and told that the accused has committed murder of his wife. On the next day morning he went to Police Station and gave statement in this regard, but he has not given any documents to show that the accused was working in the factory, getting salary. There was no agreement between the landlord and the accused in respect of residential premises, where the accused and his wife were residing.
14.PW.4 Madhusudan, deposed that the accused was working with him in a factory situated at Kamakshipalya, at that time the jurisdictional police called him to the rented house of the accused, collected photographs as well as the pillow, broken bangles and drawn the mahazar marked as Ex.P2. No notice was given to him to be present at the time of mahazar. He has signed Ex.P2 Mahazar in the Police Station. He does not know the contents of Mahazar. MO1 and MO2 were shown to him in the police station. He denies deposing false before the Court as per the instructions of the jurisdictional police. The evidence of PW.4 is self contradictory so far as seizure of 11 S.C.No.1891/2018 material objects and drawing of mahazar is concerned. Collection of photographs, seizure of pillow, broken bangles spoken by PW4.
15.PW.5 Vijayakumar being the inquest mahazar witness, deposed in his evidence that Ex.P9 inquest mahazar was drawn in Victoria Hospital, in his presence. He denies that he has signed Ex.P9 Inquest mahazar in the police station on request of the police.
16.PW.6 Mummina Sahu, sister of deceased Malathi Sahu deposed that the accused is the husband of Malathi Sahu, around five years earlier to death of Malathi Sahu, her marriage was performed with the accused, after marriage Malathi Sahu and accused came to Bangalore. Accused was doing mosquito knitting job. Malathi Sahu working in a Garment Factory, they blessed with a female child. The accused was not properly looking after his wife. There was no proper food. Malathi Sahu telephoned and told her that the accused is assaulting on her. She advised Malathi Sahu to adjust with the accused and lead her life. The accused was not responding to the good advise of Malathi Sahu. Why there was matrimonial dispute between them? Who was running the family is not known to her. The accused was not spending his income to family expenses. On 19.06.2018 her husband telephoned from Bangalore stating that the Malathi Sahu is dead. Thereafter she came to know that it is the accused, who killed Malathi Sahu by smothering. She visited the Hospital and saw the dead body of 12 S.C.No.1891/2018 her sister. During cross-examination by the learned counsel for the accused she further deposed that the accused was not her relative before the marriage with Malathi Sahu. It was a love marriage between Malathi Sahu and accused took place in the year 2013. The accused was looking after her sister before coming to Bangalore, the accused used to call through phone. The relationship of her husband and the accused was good. She is not aware about the contents of statement given before police. The cause of death of Malathi Sahu is not known to her, but the accused is aware about the cause of death.
17.PW.7 Meerakar Dehar the husband of PW.6 deposed that Malathi Sahu is sister of his wife, the accused is husband of Malathi Sahu. After the marriage Malathi Sahu and accused came to Bangalore and residing at Kamakshipalya, the accused was doing knitting work. Deceased-Smt. Malathi Sahu was working in a Garment Factory, they blessed with a female child. The relationship of Malathi Sahu and accused was not good. They were quarreling on and off. There was no proper food to Malathi Sahu. The reasons for family dispute was not known to him. One day the jurisdictional police telephoned him and told that Malathi Sahu is dead. He informed the same to her relatives. The learned public prosecutor has treated PW.7 as partly hostile witness and cross - examined him with permission of the Court, he denies that the accused was not making payment of rent, not bringing ration. The accused used to spent his income for consuming alcohol and always beating 13 S.C.No.1891/2018 Malathi Sahu by demanding her salary for the purpose of consuming alcohol. He is not aware as to whether the accused was suspecting the fidelity of the deceased-Smt. Malathi Sahu. Once he advised the accused to manage his family in a proper away. He denies that PW.1 Muniyappa, telephoned him and informed him that the accused committed murder of his wife and went away. However, he admits that the jurisdictional police were present, when he visited the rented house of the accused. Broken bangles were found by the side of the dead body. He is aware that it is the accused who committed mjurder of Malathi Sahy by smothering. He denies the statement given before police marked as Ex.P10.
18.PW.8 Chandraiah, Head Constable, Kamakshipalya P.S., forwarded the FIR to the jurisdictional Magistrate on 20.06.2018 at 1.30 a.m. There is no delay in forwarding the FIR to the jurisdictional Magistrate. PW.9 SS Hukkeri being the Executive Magistrate of Bangalore North Taluk, prepared inquest mahazar marked as Ex.P9 on 23.06.2018 in the presence of inquest mahazar witnesses. Memo issued by Kamakshipalya Police is marked as Ex.P12.
19.PW.10 Balaram Sahu, brother of the deceased-Smt. Malathi Sahu deposed that the marriage of accused and deceased-Malathi was performed at Odissa. Around five years of after marriage they were residing at Odissa, and thereafter shifted to Bangalore. Both accused as well as Malathi Sahu were working in a private firms. The accused was not making 14 S.C.No.1891/2018 payment to run the family. Malathi Sahu was spending her earnings to maintain the family. The accused was spending his income to consume alcohol. Just three days before the death of Malathi Sahu, the accused had assaulting her, Malathi Sahu told him that the accused continuously assaulting him. In fact he advised the accused to get divorce, if he is not interested to lead marital relationship with deceased. On 19.06.2018 he received Telephone call and came to know that Malathi Sahu is dead. After three days he came to Bangalore from Odissa and visited the hospital and found the dead body of his sister. The accused committed murder of his sister by smothering with pillow on her face. He identifies the photographs of the dead body found in the place of occurrence, marked as Ex.P5 to P8. During cross-examination the learned counsel for the accused, he admits that relationship between the accused and the deceased was cordial, when they were staying at Odissa. Two months after coming to Bangalore, he came to know that the deceased met with torture by the accused. He did not file any complaint, as it was personal matter of accused and deceased. He did not visit to Bangalore, when the accused and deceased were staying here. Suggestions that the accused was properly maintaining the family has been denied by PW.10 .
20.PW.11 Nagamani, Women Police Constable, Kamakshipalya P.S., deposed that she took seized materials for FSL and obtained receipt in this regard. PW.12 R. K. Kumar, ASI, Kamakshipalya P.S., deposed that he instructed his 15 S.C.No.1891/2018 subordinate staffs to arrest the accused. Accordingly, accused was arrested and produced before him on 24.06.2018, gave a report marked as Ex.P13. According to PW.12 the accused was arrested at Yeshwanthapura Railway Station and PW.13 Kavyashree, Police Sub-Inspector, Kamakshipalya P.S., deposed in her evidence that 19.06.2018 at 11.30 p.m. received complaint filed by the informant and forwarded the FIR to the jurisdictional Magistrate as per Ex.P11. She gave requisition to the concerned to conduct inquest mahazar as per Ex.P12. During cross-examination she further deposed that Ex.P1 complaint was written by her subordinate staff and PW.1 put his left thumb impression on the complaint after going through the same. Arrest of accused at Yeshwanthapura Railway Station is not disputed.
21.PW.14 Dr. S. Venkataraghavan, Medical Officer working at Victoria Hospital deposed that on 24.06.2018, the Special Tahasildar, Bangalore North requested him to conduct Postmortem, accordingly on the same day 10.00 to 11.00 a.m. he has conducted postmortem, found the following injuries on the dead body:-
1.Contusion present over inner surface of upper lip, three in number of sizes measuring between 0.5 cm x 0.5 cm to 0.2cm X 0.2cm.
2. Nail scratch abrasion present over the back of right hand situated 2cm below the knuckle of index finger measuring 1cm X 1cm.16 S.C.No.1891/2018
3.nail scratch abrasion present over the supra-
sternal area situated 0.5 cm. away from the inner end of right clavicle measuring 02cm X 0.2 cm.
4.Nail scratch abrasion pesent over the from of the neck in midline situated 8cm below the chin measuring 0.2cm x 0. 2cm.
5.Nail scratch abrasion present over the left side of neck situated 10cm below the left ear lobule measuring 9.2 cm. to 9.2 cm. and
6.Contusion present over the lateral aspect of right arm at it middle third situated 9 cm below acromion process on right side measuring 7cm X 3cm.
22.PW.14 further deposed that at the time of postmortem found the following injuries and symptoms:
1.On reflection of scalp there is blood extravasation measuring 12 cm X 10 cm present over the left pronto temporal region with contusion of left temporalis muscles.
2.Brain congested and edematous C/S white matter shows petechial hemorrhages.
3.The medical officer by examining thorax found frothy pink secretions present in the respiratory track, both lungs are congested and edematous C/S evades blood mixed with froth. Surface shows petechial hammerages. Lever congested, spleen congested, CS cavity contains minimal amount of blood.17 S.C.No.1891/2018
The Medical Officer has conducted postmortem and issued PM report marked as Ex.P14, which further reveals that death is due asphyxia as a result of smothering . According to him injury No.1 referred in Ex.P14 i.e., abrasions are bright red in color and contusion is red in color could be caused by MO1 pillow, if the pillow is used to close the mouth and nose by putting pressure. He has also examined MO1 pillow and gave his opinion as per Ex.P16.
The learned counsel for the accused subjected PW.14 for cross-examination and questioned that the time of death has not been mentioned in PM report. According to PW.14 the dead body was preserved in cold storage in the hospital. CT Scan of the face was not obtained, photographs of the dead body might have been collected in the Hospital, but the same was not handed over to the I.O., Eyes of the deceased were not sent for examination. Ex.P14 containing handwritings of Post Graduate, who was present at the time of conducting postmortem. Official act conducted by PW.14 has been denied by the learned counsel for the accused. Cause of death is proved by the prosecution by leading evidence of PW.14.
23.PW.15 R. G. Ravikumar, Police Inspector, Kamakshipalya P.S., deposed that on 20.06.2018, he has visited the place of occurrence and drawn the Mahazar in the presence of mahazar witnesses. Notice was issued to mahazar witnesses as per Ex.P18 and P19. MO1 Pillow, MO2 broken bangles were seized under Ex.P2 Mahazar. He has received 18 S.C.No.1891/2018 inquest Mahazar from the Special Tahasildar, marked as Ex.P9. He has also recorded voluntary statement of the accused, but based on the volutnary statement no property was recovered, as the voluntary statement of the accused is an inadmissible document. He has also received PM report. MO3 to MO6were collected through his subordinate officials, MO1 pillow sent for examination by the Medical Officer. Got Ex.P16 FSL report, prepared sketch of place of occurrence marked as Ex.P22 and filed charge sheet against the accused for the alleged offences. During cross-examination the learned counsel for the accused questioned the I.O., regarding recording of statement of PW.7, who is not aware about Kannada Language, but the same has not been mentioned in the statement. Minor lapses regarding mentioning wrong date in the statement of PW.7 is not a ground to reject the evidence of the prosecution. Certificate U/s.65B of Indian Evidence Act has not been submitted to the Court in respect of Ex.P3 to P8 photographs as well as photographs affixed to Ex.P2 Mahazar. The I.O., visited the place of occurrence with mahazar witnesses and drawn Ex.P2 Mahazar, photographs collected by the I.O., has been printed in Ex.P2. Admittedly certificate u/s.65B of Indian Evidence act has not been submitted with photographs. However, evidentiary value of Ex.P2 Mahazar is not shaken only on the ground that certificate U/s.65B of Indian Evidence Act is not submitted to the Court. Even if the photographs affixed to the Mahazar as well as Ex.P3 to P8 excluded, it will not affect the case of the prosecution, as Ex.P3 to P8 photographs reveals existence and 19 S.C.No.1891/2018 place of occurence and the dead body. Death of wife of the accused Smt. Malathi Sahu is not disputed by the accused. Dog squad as well as fingerprint experts not visited the place of occurrence when PW.15 visited the scene of crime. It is pertinent to note that delay in conducting inquest mahazar was due to late arrival of blood relatives of the deceased from Orissa to Bangalore. The right of accused not infringed due to delay in conducting inquest by the I.O., I.O., is not aware about the media report that the accused has been arrested in Orissa, is not aware about the source of media report. The Karnataka Police did not issue any information to the Media or the press regarding the incident took place. The accused has not raised the plea of alibi. He did not see breaking open the door of the house where the deceased was residing. Reason for not breaking open the door that the landlord himself has filed the complaint and the investigation team visited the place of occurrence in the presence of the landlord of the premises. Voluntary statement of the accused is an inadmissible document nothing to do with the case of the prosecution or the accused. Failure to collect the telephone call records of the deceased and accused, is nothing to do with the case on hand. Nothing has been elicited from the mouth of PW.15 to disbelieve the case of the prosecution. Minor error in conducting the investigation is not a ground to discard the entire evidence of the I.O., who deposed regarding details of investigation conducted by him after receipt of information. Ex.P1 complaint filed by PW.1 reveals that he being the 20 S.C.No.1891/2018 landlord of deceased-Smt. Malathi Sahu and the accused, about nine months before the death of Smt. Malathi Sahu, gave the premises to the accused and his wife on rental basis. The accused as well as deceased-Smt Malathi Sahu were residing in the said house since nine months before the death of the Smt. Malathi Sahu. On 19.6.2018 morning he saw both the deceased as well as the accused in the house and went to his work. He came back in the afternoon at about 1.00 clock he was taking rest outside his house. The accused at about 2.00 p.m. locked his house going outside with a kit bag. PW.1 spoke to him at that point of time. On that day till 7.30 p.m. the accused did not return to house and there was no light in the house of the accused. PW.1 went near the house of the accused, and knock the door, but there was no response. He saw the deceased-Smt. Malathi Sahu in a sleeping position with bed sheet cover and found her dead body as well as broken bangles, pillow near the dead body. PW.1 immediately informed the concerned police, and filed complaint marked as Ex.P1, and the Kamakshipalya Police initiated investigation. PW.2 being the wife of PW.1, deposed regarding the tenancy relationship between the deceased as well as the accused and her husband as on the date and she also deposed regarding the door locked, when she returned to her house on the date of incident, though she deposed that she had not seen the accused at the time of locking the door. She has not denied noticing the accused by her husband while locking the door and going outside with kit bag.
21 S.C.No.1891/201824.On 19.06.2018 at 7.00 a.m. PW.1 Muniyappa last seen the accused and deceased-Smt. Malathi Sahu in the rented house. The accused was there in the house till 2.00 p.m. when PW.1 returned to his house situated by the side of the rented house of accused and deceased-Smt.Malathi Sahu. The accused was locking the door at about 2.00 p.m. when PW.1 was present near his house. Ex.P14 PM report issued by PW.14 Dr. Venkataraghavan reveals that
1.Contusion present over inner surface of upper lip, three in number of sizes measuring between 0.5 cm x 0.5 cm to 0.2cm X 0.2cm.
2. Nail scratch abrasion present over the back of right hand situated 2cm below the knuckle of index finger measuring 1cm X 1cm.
3.nail scratch abrasion present over the supra- sternal area situated 0.5 cm. away from the inner end of right clavicle measuring 02cm X 0.2 cm.
4.Nail scratch abrasion pesent over the from of the neck in midline situated 8cm below the chin measuring 0.2cm x 0. 2cm.
5.Nail scratch abrasion present over the left side of neck situated 10cm below the left ear lobule measuring 9.2 cm. to 9.2 cm. and
6.Contusion present over the lateral aspect of right arm at it middle third situated 9 cm below acromion process on right side measuring 7cm X 3cm.
22 S.C.No.1891/2018He deposed in his evidence that on 31.07.2018 he examined MO1 pillow and gave his opinion that injury No.1 could be caused if the pillow is used for smothering. FSL report marked as Ex.P23 reveals that residues of Volatile pisons, Pesticides, Barbiturates, Benzodiazepine group of drugs, Toxic metal ions and anions were not detected in all the articles. Death of Smt. Malathi Sahu is undoubtedly due to asphyxia as result of something. Except the accused and dedceased-Smt. Malathi Sahu no body were residing with them. Posibility of entering an unknown person from 7.00 a.m. to 2.00 p.m. to the rented house of the accused and deceased is ruled out under the facts and circumstances of the case. Prosecution must establish the time when the deceased was last seen with the accused, and the time of death. Unless there is proximity in the time of last seen and the time of death, the evidence cannot be taken into convict the accused. U/s.16 of Indian Evidence Act, where the burden of proving the fact is on the person who has especially known about that particular fact or circumstances. Hon'ble Supreme Court in Sharad Birdichand Sharda Vs. State of Maharashtra(1984) 4 SCC 116 held that "the normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of 23 S.C.No.1891/2018 the Accused; that the circumstances taken cumulatively should form the conclusion that within all human probability the crime was committed by the Accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the Accused and inconsistent with his innocence ".
In the case of Bodh Raj Alias Bodha Vs., State of Jammu and Kashmir 2.(2002) 8 SCC 45, Rambraksh V/s State of Chattisgarh 3.(2016)(12) SCC 251, and Anjan Kumar Sharma V/s. State of Assam 4.(2017) SCALE 556' following principle of law, in this regard, has been enunciated;-
"The last seen theory comes into play where the time gap between the point of time when the Accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the Accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases" .24 S.C.No.1891/2018
Hon'ble Supreme Court of India in Chandrapal Vs., State of Chattisgarh (2022 Livelaw SC) 529 held that in order to convict an accused U/s.302 of IPC the court is required to first see as to whether the prosecution has proved the factum of homicidal death. The circumstances concerned "must or should be" established and not "may be"
established- The accused"must be" and not merely "may be" guilty before a Court can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures. The entire chain of circumstances on which the conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground for the conclusion consistent with the innocence of the accused".
25 In the case on hand it is clear that the accused and deceased-Smt.Malathi Sahu were residing in a rented house situated at Kaverinagar, Kamakshipalya, within the limits of complainant Police, the landlord of the accused and deceased- Smt. Malathi Sahu, last seen both the accused and deceased at 7.00 a.m. 19.06.2018. The accused was very much present in the house till 2.00 p.m. on the same day he has locked the house and went outside with kit bag was specified and in the evening the dead body of the deceased was found and matter 25 S.C.No.1891/2018 was immediately reported to the employer of accused PW.3 Shivprakash, Subsequently matter was reported to the police and the investigation being conducted by the complainant police. The accused as well as deceased-Smt. Malathi Sahu migrated from Orissa to Bangalore. PW.3 being the employer of the accused, introduced the accused to PW.1 Landlord of the house where the accused and deceased were residing. The re was matrimonial dispute between the accused and deceased for the reason that the deceased always engaged with telephone conversation with her relatives, the accused suspected fidelity of the deceased and picked up quarrel with the deceased for taking Rs.1,000/- out of Rs.2,500/- which was kept in the house to pay his father. On 19.06.2018 at 8.00 a.m. to 2.00 p.m. the accused and deceased were residing in the rented house. Payment of Rs.2,500/- to the accused by his employer PW.3 Shivprakash is established. PW.3 further deposed in his evidence that on the next day i.e., on 18.06.2018 the accused did not attend to his work. On 19.06.2018, the accused attend his work at 6.30 a.m. and left the factory premises and 9.00 a.m. for tiffin, thereafter he return to the work at 10.00 a.m. and again left the premises according to PW.3 Shivprakash. PW.1 telephoned to PW.3 and thereafter jurisdictional police contacted him and informed him that the accused killed his wife. Sister of the deceased Smt. Mamina Sahu deposed in her evidence that accused and deceased- Smt. Malathi Sahu were residing at Bangalore, deceased was working in Garment Factory, there was matrimonial dispute 26 S.C.No.1891/2018 between the accused and the deceased. The accused was not feeding the deceased, deceased used to tell that the accused always assaulting her. On 19.06.2018, her husband Nirkar Behra telephoned her and informed regarding death of Smt. Malathi Sahu. PW.7 Nirkar Behra also deposed that there was matrimonial dispute between the accused and the deceased- Smt. Malathi Sahu. It is clear from the evidence of PW.6, PW.7 and PW.8 that the relationship between the accused and deceased was not cordial. The accused was suspecting the deceased, the deceased took the amount kept in the house by the accused to pay his father. As such the accused became angry and killed his wife by smothering. The I.O., has not conducted investigation with regard to amount of Rs.1,000/- taken or spent by the deceased out of Rs.2,500/- kept in the house by the accused to pay his father. But the lapses of investigation is not a ground to discard the whole evidence of the prosecution. The deceased and the accused were residing in the rented house. PW.1 saw the accused and the deceased in the morning, and he came back at 1.00 p.m. and found the accused in the house when the accused locking the door. If at all the accused did not commit offence of murder, his normal behaviour would have been to inform PW.1 regarding death of his wife. The accused informed PW.1 that he is going to meet his father. Dead body of the deceased was in the rented house when the accused left the rented house by locking the door. Prosecution is able to prove the motive of the accused to kill his wife, and after the murder the accused kept the body by 27 S.C.No.1891/2018 covering with bed sheet and left the place. There is no reason to disbelieve the case of the prosecution. Prosecution is able to prove the charge leveled against the accused. Accordingly I answer the point No.1 and 2 in the Affirmative.
26. Point No.3: In the result, therefore, I proceed to pass the following:
ORDER Acting U/s.235(2) of Cr.P.C. the accused is hereby convicted for the offences punishable U/s.302 and 201 of Indian Penal Code.
For hearing on sentence call on.
(Dictated to the Stenographer directly on computer, corrected by me and then pronounced in open Court on this the 23rd day of January, 2023) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru (CCH 46) 28 S.C.No.1891/2018 ORDER ON SENTENCE The accused is produced before this Court through V.C., The learned counsel for accused is also present. Heard the accused and the learned counsel for accused as well as the learned Prosecutor appearing for the complainant police regarding order on sentence.
2. The accused submits that he is having a child and old aged parents, and he has to take care of them. Hence, the accused seeks for leniency in imposing sentence. Further, the learned counsel for accused submits that there is no any antecedent of accused that he has committed any offence earlier and hence, considering the materials on record, leniency may be taken on imposing punishment against the accused.
3. However, the learned Public Prosecutor appearing for the complainant police submits that the accused is convicted for the offences punishable U/s.302 and 201 of IPC. The case alleged the accused is case of heinous in nature, as the accused with intention of causing death with the knowledge such act is likely to cause death committed murder of his wife by smothering. Hence, no leniency can be shown to the accused and adequate and proper sentence my be imposed on the accused.
4. The submissions of both the parties are taken into consideration in the circumstances of the case and also from the materials on record, it is clear that the accused is convicted for the offences punishable U/s.302 and 201 of IPC and it is 29 S.C.No.1891/2018 undoubtedly a social evil. Hence, if leniency is shown to the accused, it will give wrong message to the society at large. The accused has committed heinous offence. Therefore, considering materials on record and the offence committed by the accused reasonable sentence to be passed.
5. It is well settled principle of law that the Court should weigh the sentence with reference to the crime committed and circumstances of the case. The relevant facts to be considered before awarding appropriate sentence to the accused is the motive, intention of the accused to commit offence, the gravity, dimension and nature of injury, the age and general health condition of the accused circumstances etc., are illustrative. Any liberal approach in imposing meager sentence or taking too sympathetic view is against societal interest which needs to be cared by imposing proper and adequate sentence on the accused.
6. In the result, I proceed to pass the following:
ORDER The accused is sentenced to undergo rigorous imprisonment for life and he shall also pay fine of Rs.1,000/- for the offence punishable under Section 302 of IPC, in default to pay the fine, the accused shall undergo further imprisonment for three months months.
The accused is sentenced to undergo rigorous imprisonment for seven years and he shall also pay fine of Rs.1,000/- for the offence punishable under 30 S.C.No.1891/2018 Section 201 of IPC, in default to pay the fine, the accused shall undergo further imprisonment for three months months.
The sentences of imprisonment awarded herein above shall run concurrently.
The period of imprisonment already undergone by the accused as under trial prisoner in this case shall be given set off towards the punishment of sentence of imprisonment imposed herein.
In pursuance of provision of Sec.363 of Cr.P.C. the copy of judgment is furnished to the accused person free of costs.
The MO1 to MO6 are ordered to be destroyed as worthless after the expiry of appeal period. Office is directed to send the copy of the judgment to the Member Secretary, District Legal Services Authority, Bangalore Urban District as provided U/s.357A(2) of Cr.P.C., to award compensation in favour of child of deceased-Smt. Malthi Sahu and the accused through lawful guardian, under the victim compensation scheme.
Office to issue conviction warrant accordingly.
(Dictated to the Stenographer directly on computer, corrected by me and then pronounced in open Court on this the 27th day of January, 2023) (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru (CCH 46) 31 S.C.No.1891/2018 ANNEXURE List of Witnesses examined on behalf of Prosecution:
P.W.1: Muniyappa P.W.2: Smt. Lakshmamma P.W.3: Shivaprakash P.W.4: Madhusudhan P.W.5: Bijayakumar P.W.6: Mamina Sahu P.W.7: Nirkar Behara P.W.8: Chandraiah P.W.9: S. S. Hukkeri P.W.10: Balaram Sahu P.W.11: Nagamani P.W.12: K. R. Kumar P.W.13: Kavyashree PW.14: R. G. Ravikumar
List of Documents exhibited on behalf of Prosecution:
Ex.P.1: Complaint Ex.P.2: Mahazar of PW.1 U/s.164 of Cr.P.C., Ex.P.3 to P.8:Photographs Ex.P.9: Inquest Ex.P.10: Statement of PW.7 Ex.P.11: FIR Ex.P.12: Requisition Letter Ex.P.13: Statement of PW.12 Ex.P.14: PM Report 32 S.C.No.1891/2018 Ex.P.15: Requisition Letter Ex.P.16: FSL Report Ex.P.17: Sample Seal Ex.P.18: Notice Ex.P.19: Notice Ex.P.20: FSL Acknowledgement Ex.P.21: Requisition letter Ex.P.22: Sketch Ex.P.23: FSL report.
List of Witnesses examined on behalf of Accused:
NIL List of Documents exhibited on behalf of Accused:
NIL List of Material Objects marked on behalf of Prosecution: MO1: Pillow MO2: Glass pieces MO3: Saree MO4: Blouse MO5 Petticoat MO6: Underwear.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru (CCH 46) 33 S.C.No.1891/2018 Accused produced from JC through VC Judgment pronounced in the open Court vide its separate order ORDER Acting U/s.235(2) of Cr.P.C. the accused is hereby convicted for the offences punishable U/s.302 and 201of Indian Penal Code.
For hearing on sentence call on (Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.34 S.C.No.1891/2018
Accused produced from JC through VC. Learned counsel for the accused present. Learned Public Prosecutor present. Heard the accused, learned counsel for the accused and learned public prosecution on question of sentence.
Order pronounced in the open Court vide its separate order ORDER The accused is sentenced to undergo rigorous imprisonment for life and he shall also pay fine of Rs.1,000/- for the offence punishable under Section 302 of IPC, in default to pay the fine, the accused shall undergo further imprisonment for three months months. The accused is sentenced to undergo rigorous imprisonment for seven years and he shall also pay fine of Rs.1,000/- for the offence punishable under Section 201 of IPC, in default to pay the fine, the accused shall undergo further imprisonment for three months months. The sentences of imprisonment awarded herein above shall run concurrently.
The period of imprisonment already undergone by the accused as under trial prisoner in this case shall be given set off towards the punishment of sentence of imprisonment imposed herein. In pursuance of provision of Sec.363 of Cr.P.C. the copy of judgment is furnished to the accused person free of costs. The MO1 to MO6 are ordered to be destroyed as worthless after the expiry of appeal period.
Office is directed to send the copy of the judgment to the Member Secretary, District Legal Services Authority, Bangalore Urban District as provided U/s.357A(2) of Cr.P.C., to award compensation in favour of child of deceased-Smt. Malthi Sahu and the accused through lawful guardian, under the victim compensation scheme.
Office to issue conviction warrant accordingly.
(Manjunatha) XLV Addl. City Civil & Sessions Judge, Bengaluru.35 S.C.No.1891/2018