Karnataka High Court
State vs Nagaraj S/O Yallappa Naik on 14 December, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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CRL.RC No. 100002 of 2019
C/W CRL.A No. 100237 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 14TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REFERRED CASE NO. 100002 OF 2019 (-)
C/W
CRIMINAL APPEAL NO. 100237 OF 2019
IN CRL.R.C. NO.100002 OF 2019
BETWEEN
1. STATE BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD,
REP. BY MALAMARUTI POLICE STATION,
BELAGAVI.
...COMPLAINANT
(BY SRI. V.M.BANAKAR, ADDL. SPP)
AND
1. NAGARAJ S/O YALLAPPA NAIK
AGE: 36 YEARS,
R/O: ALADAL JANATA PLOT,
TQ: HUKKERI,
DIST: BELAGAVI.
...ACCUSED
(BY SRI. RAM P GHORPADE, ADVOCATE)
THIS CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366 OF CR.P.C. FOR CONFIRMATION OF
DEATH SENTENCE AWARDED TO ACCUSED: NAGARAJ YALLAPPA
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CRL.RC No. 100002 of 2019
C/W CRL.A No. 100237 of 2019
NAIK, AGE: 36 YEARS, OCC: AGRICULTURE, R/O: JANATA PLOT,
ALADAL, TQ: HUKKERI, DIST: BELAGAVI.
IN CRL.A. NO. 100237 OF 2019
BETWEEN
1. NAGRAJ S/O YALLAPPA NAIK
AGE: 39 YEARS,
OCC: AGRICULTURE,
R/O: JANATA PLOT,
ALADAL, TQ: HUKKERI,
DIST: BELAGAVI.
...APPELLANT
(BY SRI. RAM P GHORPADE, ADVOCATE)
AND
1. STATE OF KARNATAKA
BY MALMARUTI POLICE STATION,
BELAGAVI,
REPRESENTED BY THE STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.,
SEEKING TO CALL FOR THE ENTIRE RECORDS AND ALLOW THIS
CRIMINAL APPEAL BY SETTING ASIDE THE JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE DATED 18/04/2019 IN
S.C.NO.255/2016 PASSED BY THE V ADDL. DISTRICT AND
SESSIONS JUDGE, BELAGAVI THEREBY CONVICTING THE APPELLANT
FOR THE OFFENCES PUNISHABLE UNDER SECTION 498(A) S.I. FOR
THREE YEARS AND TO PAY FINE OF RS.10,000/- AND IN DEFAULT OF
FINE AMOUNT APPELLANT / ACCUSED SHALL GO S.I. FOR SIX
MONTHS AND THE ACCUSED IS CONVICTED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC AND SENTENCED TO
DEATH, DIRECTING THAT HE SHALL BE HANGED BY THE NECK TILL
HE IS DEAD SUBJECT TO THE CONFIRMATION OF SENTENCE BY THE
HON'BLE HIGH COURT OF KARNATAKA AS PER BY THE PROVISIONS
OF SECTION 366 OF CR.P.C.
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CRL.RC No. 100002 of 2019
C/W CRL.A No. 100237 of 2019
THIS CRIMINAL R.C. AND CRIMINAL APPEAL HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY,
SURAJ GOVINDARAJ J., DELIVERED THE FOLLOWING:
JUDGMENT
1. The accused/appellant is before this Court aggrieved by the judgement of conviction and order sentence passed by the V Additional District and Sessions Judge, Belagavi dated 18.04.2019 in S.C.No.255/2016.
2. By way of the said order, the trial Court convicted the accused for offences punishable under Section 498-A read with 302 of IPC and sentenced him to undergo simple imprisonment for three years and to pay fine of Rs.10,000/- for the offence punishable under Section 498-A of IPC. In default of payment of fine, to undergo simple imprisonment for six months. Insofar as offence under Section 302 of IPC is concerned, he was sentenced to death, to be hanged by neck till he is dead, subject to confirmation of -4- CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 sentence by this Court as per provision under Section 366 of Cr.P.C.
3. The case of the prosecution is that:
3.1. The accused being the husband of the deceased Geeta Nagaraj Naik was consistently harassing the deceased both mentally and physically, due to which the deceased left his company and went to her maternal home. Despite the same, the accused did not let go but continued his harassment by visiting the maternal home of the deceased as also the beauty parlor where she worked, demanding monies for the purpose of consumption of alcohol and would pick up quarrel with her when she refused to make payment. He had also threatened the parents of the deceased either to send the deceased to reside with him or else permit him to stay with -5- CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 the deceased in the maternal home or else he would kill the deceased.
3.2. On 28.03.2016 at about 10.15 a.m. when the deceased was going to her work place namely a beauty parlor and was near the bridge of NH-4 near Hindalco factory gate of Yamanapur village, the accused once again accosted the deceased demanding money for consumption of alcohol. When the deceased refused, he threatened to kill her and thereafter assaulted her with a koyta namely sickle on her head, face causing grievous injuries. The deceased succumbed to the said injuries at the spot.
4. The brother of the deceased namely PW.1 filed the complaint which was taken up for investigation. Upon investigation being completed, a charge sheet was laid against the accused for offence punishable under Sections 302 and 498-A of IPC. The prosecution -6- CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 papers were furnished to the accused. Since the offence was under Section 302 of IPC, the Magistrate committed the case to the Principal District and Sessions Judge, Belagavi, wherein the case in S.C.No.255/2016 was registered.
5. The accused was secured from judicial custody. The accused and prosecution were heard before charges.
Charges were framed and explained to the accused, who pled not guilty and claimed to be tried.
6. In order to establish its case, the prosecution in all examined 25 witnesses as PW.1 to PW.25 and got marked more than 41 documents at Exs.P.1 to P.41 and 23 material objects at MOs.1 to MO.23.
7. Upon closure of evidence of the prosecution, the incriminating evidence was put across to the accused and his statement under Section 313 of Cr.P.C. was recorded, where he denied all the incriminating -7- CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 evidence. He had however, given a statement at the time of such denial but did not lead any evidence.
8. After considering the evidence on record and hearing the arguments of both sides, the trial Court passed the impugned judgement of conviction and order of sentence as detailed above, which is impugned hereunder.
9. Since the conviction was one for the offence under Section 302 of IPC and sentence imposed was one of capital punishment, in terms of Section 366 of Cr.P.C. the records have been put up for confirmation or otherwise of the said sentence in Criminal R.C.No.100002/2019.
10. Sri.Ram P Ghorpade, learned counsel for the appellant/accused submits that:
10.1. The judgement of conviction and order of sentence is contrary to law, facts and evidence on record.-8- CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019
10.2. There are no particular eyewitnesses available as regards the incident though there is an allegation made that six days prior to the murder, the accused had visited the beauty parlor where the deceased worked and threatened her with death if Rs.500/- was not paid. No complaint to that effect was filed.
10.3. The allegation that the accused had undertaken not to harass the deceased by executing an affidavit on a bond paper is unbelievable.
10.4. The same stamp paper is also got up document only for the purpose of fixing the accused. The stamp paper bore the name of a different person which has been struck of and later the name of the accused has been inserted. No details are forthcoming as regards from where the stamp paper was purchased, by whom and -9- CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 when and this he submits is a got up document to try and fix the accused.
10.5. PW.6's evidence is also not believable though PW.6 has stated that whenever there is a problem between the accused and the deceased PW.6 and his wife and other family members would advice the accused but when enquired as to when such advice is given he is unable to give the dates which indicates that the deposition of PW.6 is false.
10.6. Though it is alleged that there was complaint given to Mahila Police Station regarding the harassment caused by the accused, copy of the said complaint has not been produced.
10.7. PW.15 though has spoken about the quarrel between the accused and the deceased, but in her cross-examination she has stated that she
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does not know personally about the quarrel between them.
10.8. PW.8 who is said to be an eyewitness does not know which hand was used by the accused left or right for the purpose of assaulting the deceased. Furthermore, the place of assault being under a bridge and it being dark at that time, the evidence of the witness in that regard cannot be believed.
10.9. Insofar as other eyewitnesses, PWs.9, 10, 11, 12 and 13, they have not supported the case of the prosecution and they turned hostile. 10.10. PW.2 is a witness to the spot panchanama has stated that she does not know for what reason the spot panchanama at Ex.P.5 and the inquest panchanama at Ex.P.6 was conducted by the police. Therefore, she has not supported the case of the prosecution.
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 10.11. PW.3 who is a witness to spot panchanama at Ex.P.5 and inquest panchanama at Ex.P.6 has stated that he does not know what is written in the said documents. Thus, he submits that this witness also has not supported the case of the prosecution.
10.12. PW.18 has also not supported the case of the prosecution inasmuch as she stated that she does not know about any harassment of the accused to the deceased. She had never pacified the quarrel between them and she does not know about any complaint filed by PW.1. Therefore, she has also turned hostile and not supported the case of the prosecution. 10.13. PW.21 doctor who has conducted postmortem is unable to give the time of death. Thus, the occurrence of the event and place of occurrence are themselves in doubt.
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 10.14. PW.25 has categorically stated that no finger print outs of the accused were found on the sickle, MO.8 and as such it cannot be said that the same was used by the accused.
10.15. The CCTV recording at Ex.P.15 is not accompanied by necessary certificate under Section 65-B of the Indian Evidence Act and therefore the same could not have been referred to and relied upon by the trial Court. 10.16. The conviction of the accused only on the basis of the statement made by PWs.1, 6 and 7 who were brother, father and mother of the deceased is unsustainable since they are interested witnesses and their evidence could not be straight away believed unless corroborated by other evidence.
10.17. There being no particular eyewitnesses, the matter would have to be treated as one of
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 circumstantial evidence and rules relating to circumstantial evidence would be applicable requiring that the prosecution prove beyond reasonable doubt that it is the accused who has caused the death of the deceased.
10.18. On these grounds he submits that the judgement of conviction and order of sentence passed by the trial Court is required to be set aside.
10.19. He relies upon the decision reported in 2022 Live Law (SC) 856 in the case of MD.JABBAR ALI AND OTHERS VS. THE STATE OF ASSAM, more particularly para 52, which is reproduced hereunder for easy reference:
"52. Further as already stated above, all the witnesses have given contradictory versions as to who gave the fatal blow to deceased Ekkabar Ali and the same amounts to material contradictions. It is reiterated that the testimony of PW-6 is inconsistent with the testimonies of PW-1, PW-2 and PW-5 This Court in the case of State of Rajasthan v. Kalki & Anr. (1981) 2 SCC
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752, distinguished between the normal discrepancies and material discrepancies. This Court held that the Courts have to label as to which category a discrepancy can be categorized. The material discrepancies corrode the credibility of the prosecution's case while insignificant discrepancies do not do so."
10.20. He relies upon the decision reported in 2022 Live Law (SC) 461 in the case of RAVINDER SINGH @ KAKU VS. STTE OF PUNJAB, more particularly para 20 and 21, which are reproduced hereunder for easy reference:
"20. Lastly, this appeal also raised an important substantive question of law that whether the call records produced by the prosecution would be admissible under section 65A and 65B of the Indian Evidence Act, given the fact that the requirement of certification of electronic evidence has not been complied with as contemplated under the Act. The uncertainty of whether Anvar P.V. vs P.K. Basheer & Ors [ (2014) 10 SCC 473] occupies the filed in this area of law or whether Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 lays down the correct law in this regard has now been conclusively settled by this court by a judgement dated 14/07/2020 in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal [ (2020) 7 SCC 1] wherein the court has held that:
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"We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.
Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4)."
21. In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, Oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law." 10.21. He relies upon the decision reported in 2022 Live Law (SC) 229 in the case of NANDU SINGH VS. STATE OF MADHYA PRADESH (NOW CHHATTISGARSH), more particularly para 12 and 14, which are reproduced hereunder for easy reference:
"12. In the subsequent decision in Shivaji Chintappa Patil vs. State of Ma- harashtra6, this Court relied upon the decision in Anwar Ali1 and observed as under:-
"27. Though in a case of direct evidence, motive would not be rele- vant, in a case of circumstantial evidence, motive plays an
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important link to complete the chain of circumstances. The motive... ..."
14. The circumstances on record do not make a complete chain to dispel any hypothesis of innocence of the appellant. The prosecution having failed to establish through clear, cogent and consistent evidence, the chain of events, on the basis of which the guilt of the appellant could be established, the courts below were not right in accepting the case of prosecution and convicting the appellant."
10.22. He relies upon the decision reported in 2022 Live Law (SC) 543 in the case of MAHENDRA SINGH AND OTHERS VS. STATE OF M.P., more particularly para 23, which is reproduced hereunder for easy reference:
"23. Insofar as the contention of learned DAG for the respondent-State that the prosecution has proved the motive is concerned, it is well settled that only because motive is established, the conviction cannot be sustained."
11. Sri.V.M.Banakar, learned Additional Special Public Prosecutor would however submit that:
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11.1. All the witnesses have spoken about the harassment affected by the accused to the deceased and the deceased being unable to tolerate the harassment she shifted to her maternal home, where the accused continued to harass the deceased and sought for money for his drinking purposes.
11.2. The accused had also threatened the deceased with death and it is in furtherance of the same that the accused had accosted the deceased under Hindalco Bridge.
11.3. The accused having carried sickle with him to the said spot, the manner in which the murder has been conducted being brutal and the injuries caused being such that it would establish the heinousness of the offence.
11.4. The eyewitnesses having categorically stated of them having seen the deceased being assaulted
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by the accused, the trial Court has rightly convicted the accused.
11.5. Insofar as capital punishment, he submits that the brutal manner in which the deceased has been assaulted by the accused in a preplanned and premeditated manner that too on account of deceased not having given money to the accused for the purpose of drinking habit establishes that the accused has no value for the life of a person and that for the purpose of money he would kill anybody. Such kind of assault committed by the accused which resulted in the death being one of the most heinous offence, the manner of murder being brutal would clasify the present offence to be rarest of rare kind requiring imposition of capital punishment and therefore, he submits that this Court ought to confirm the capital punishment awarded by the trial Court.
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019
12. It is in the background of the above submissions made by Sri.Ram P Ghorpade, learned counsel for the appellant and Sri.V.M.Banakar, learned Additional SPP that we are called upon to reappreciate and reassess the evidence on record to ascertain if the judgement of conviction passed by the trial Court is proper and correct and order of sentence being that of capital punishment is required to be confirmed.
13. There is no dispute about the deceased and the accused being married to each other. There is also no dispute as regards the death of the deceased being homicide. PW.21-Dr.Ashok Kumar Shetty who has conducted the postmortem has stated there were multiple bone deep chop wounds present over face and forehead at places with fragmentation of facial and skull bones present with extra vacation of brain matter at places and whole face was distorted, bone deep chop wounds measuring 12x1 cm and 3x2 cm present over mastoid process and left pinna
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 respectively, bone deep chop wound 5x2 cm present over right wrist joint (outer aspect), bone deep chop wound 6x2 cm present over outer aspect of right forearm, bone deep chop wound 10x4 cm present over left wrist joint exposing underlying bones, muscles, vessels and tendons, fracture of radius and ulna over left side at the lever of wrist joint present, grazed abrasion 2x1 cm present over posterior aspect of right elbow joint, bone deep chop wound 6x1 cm present over anterior aspect of left forearm just above injury no.5, bone deep chop wound 5x1 cm present over anterior aspect of left forearm just below injury no.5.
14. He has opined that the death is due to shock of hemorrhage as a result of injury produced by sharp edged weapon. He has admitted issuing postmortem report at Ex.P.31 and his signature thereto. He has stated that he has also received a requisition to examine the weapon which he has examined and
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 opined that the injures caused to the deceased could be caused by that weapon which has been marked as MO.8. He has withstood cross-examination and in his cross-examination he has stated that nine external injures were grievous in nature, two injuries were on the face, but he has not been able to state the time of death. From the evidence of PW.21, it is clear that the death of the deceased is due to injuries by sharp weapon namely the death is homicide.
15. In the above circumstances, it is required to be seen as to whether the evidence on record establishes that it is the accused who has committed the said offence or not.
16. The prosecution has examined PWs.1, 6, 7, 14 and 15 to establish the harassment meted out by the accused to the deceased.
17. PW.1 who is the brother of the deceased has stated that after marriage between the accused and the
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 deceased, the family had given them a house in Kangrali village for their residence. However, the accused used to scold and assault his sister (the deceased) and pick up quarrel, beat her up which the deceased would inform on her visit to her maternal home. Subsequently, the accused started consuming alcohol and harass the deceased. Once again the elders advised him but he did not heed to the advice and continued the fight with the deceased. Whenever advice was given and the elders intervened, the accused had stopped the harassment for a short period and again the same would start.
18. PW.6 the father of the deceased has stated that 5-6 months of the marriage the accused started consuming alcohol and harass his daughter (deceased). Then he and other family members would go to the house and advice him. He has also stated about having provided a house for residence and a tumtum vehicle for livelihood, but still the
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 accused continued to consume alcohol and as also assault elders and his daughter (deceased). He has denied the suggestion that the accused did not assault the deceased.
19. PW.7 the mother of the deceased has also stated that after 5-6 months of marriage the accused started consuming alcohol and assaulted her daughter. She has reiterated what is stated by PW.6.
20. PW.14 the maternal uncle of the deceased has also stated about fights between the accused and of the accused being addicted to alcohol. He has stated about the torture meted out by the accused to the deceased after consuming alcohol. Further he having advised the accused not to indulge in such activities. He has stated that the deceased had come back to her maternal home due to the torture affected by the deceased.
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21. PW.15 wife of PW.14 has also stated about the accused being addicted to alcohol and assaulting the deceased and of PW.14 having advised the accused to stop doing so. She has also spoken about the house at Kangrali being given for residence and a tumtum vehicle being given for livelihood. Though she has stated that the deceased had given a complaint against the accused she does not know the details.
22. The above witnesses have supported the case of the prosecution regarding the physical and mental harassment meted out by the accused to the deceased. These witnesses having stood the test of cross-examination have completely supported the case of the prosecution. Nothing has been elicited from them during the course of cross-examination to doubt the case of the prosecution by way of the defence.
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23. During cross-examination it has been suggested that the deceased was a angry person and adamant person and that she would quarrel with each and every person for no reason apart from that she had also quarreled with brothers of her father as regards the property dispute and therefore it is sought to be suggested that someone with whom she quarreled might have caused her death. This has been negated by the aforesaid witnesses during the course of cross-examination.
24. It has been established that the deceased had left the matrimonial home and was staying in the maternal home and working in a beauty parlor. It is the accused who had visited the beauty parlor and the place where the deceased was staying in. The matrimonial home was at Aladala and the maternal home being at Hindalco quarters, Belagavi and not in the same village or town.
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25. There is no other witness who has been examined who has deposed contrary to PWs.1, 6, 7, 14 and 15 to say that the accused has not assaulted or harassed the deceased mentally and physically.
26. The evidence of the witnesses which have been led by the prosecution categorically establishes that the accused was indeed harassing the deceased both mentally and physically. The accused had got into the habit of drinking and had been demanding payment of monies by the deceased from time to time to support his drinking activities.
27. From the above, it is clear that the offence under Section 498-A of IPC has been established as also the motive for offence of murder under Section 302 of IPC has been established on account of the deceased not having made payment of monies to the accused to support his drinking activities.
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28. Sri.Ram P Ghorpade learned counsel for the appellant has sought to contend that this is a case of circumstantial evidence. However, Sri.V.M.Banakar, learned Additional SPP has stated that it is a case of having multiple eyewitnesses.
29. The prosecution has examined PWs.8 to 10, 12 and 13 as eyewitnesses to the incident. PW.8 has stated that on 28.03.2016 at 10.15 a.m. when he was going to his house through Hindalco under bridge, he had seen the accused hitting the deceased with a sickle and thereafter the accused had thrown the sickle and ran of. When he saw the deceased, her face was full of blood with sickle injuries and then he had informed to PW.1 by a phone call. In the cross- examination, he has stated that he does not know about the relation between accused and the deceased after their marriage. Though various suggestions are put forth he has denied all the suggestions. In the cross-examination he has stated
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 that he has seen the accused hitting the deceased for two times and that the deceased face was completely stained with blood. He did not go and see whether the deceased was alive or not after the accused had assaulted but he had called PW.1 and informed him. He has admitted that he himself and PW.1 are close friends but the cross-examination does not take away the testimony of PW.8 that he had seen the accused assaulting the deceased multiple times when she was standing up as also when she had fallen down, etc.
30. PW.9 is a conductor working in KSRTC and on the fateful day he was working as conductor in bus bearing registration No.KA-22/F-1682 of which PW.10 was driver. He has denied seeing the accused murdering the deceased. He was treated as hostile and cross examined by the public prosecutor. He has denied all the suggestions put across by the
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 prosecutor. Nothing much has been elicited from him to support the case of the prosecution.
31. PW.10, the driver of KSRTC bus has also turned hostile and the prosecution has been unable to elicit anything of substance during the course of his cross- examination.
32. PW.12 has stated that on 28.03.2016 at 10.15 in the morning he had seen one person hitting one woman with a weapon shaped like a billhook, he got scared and went away from the spot. He cannot say who was the person hitting and only in the evening he came to know from the TV news about the identity. He was treated as hostile by the prosecution. He was cross-examined, he has denied all suggestions put across to him.
33. PW.13 who is Anganawadi teacher has stated that at 10.15 in the morning she had seen one person hitting one woman with sharp weapon while she was
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 passing under the bridge for her personal work and she got scared and went from the incident spot. She has admitted that the meeting that she was attending was at 10.30 a.m. and she had reached near the gate in 15-20 minutes after having gone to PW.12's house at 10.20 a.m.
34. PW.16 runs a hotel business in the name of Ganesh Hotel at Hindalco bus stop. He has stated that at 10.30 a.m. he got to know about murder of one lady and that she had been murdered by her husband. He does not know the reason for the murder and as such he was treated as hostile. In the cross- examination by the public prosecutor he has stated that he saw one lady whose face and head were hit with a sickle and blood flushed in brain and coming out of the body, the sickle was near her leg and he had denied rest of the suggestions which have been put across to him.
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35. From the above, it is clear that though a few of the witnesses have turned hostile, there are eyewitnesses to the incident who identified the accused having assaulted the deceased using a sickle. They have identified the body laying at the site being covered with injuries and blood and have placed the accused at the incident of crime at the relevant time. The only doubt which has sought to be raised by the defence in the course of cross- examination is that they are interested witnesses and nobody else has supported the case of the prosecution.
36. Insofar as the CCTV recording is concerned, PW.11 has stated that he has installed CCTV camera at the company which covers Hindalco under bridge. The police having sought for the recording, he had produced the CD containing the CCTV footage of the main gate. He has also turned hostile and was cross- examined. He has explained the manner in which the
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 CCTV recording is made inasmuch as his company has 99 CCTV cameras and three cameras are situate outside. He has not operated the computer to prepare CD. He has only got the CD prepared and handed it over to the police. Though the CD is on record, it is a fact that CD is not accompanied by the certificate issued under Section 65-B of the Indian Evidence Act. In the absence of such a certificate, the said electronic evidence cannot be looked into as held by the Hon'ble Apex Court in ARJUN PANDITRAO KHOTKAR VS KAILASH KUSHANRAO GORANTYAL., reported in, (2020)7 SCC 1.
37. The other witnesses are official witnesses. PW.19 is the police constable who had carried FIR and submitted RFSL, PW.20 is engineer, who issued spot sketch, PW.22 is women police constable who accompanied the dead body of the deceased to the hospital and brought clothe of the deceased to the
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 police station, PW.23 is the head constable who registered the complaint and FIR, PW.24 is the scientific officer of RFSL, PW.25 is the investigating officer. These official witnesses have supported the case of the prosecution and nothing much has been elicited from them in support of the prosecution.
38. PW.1 has stated that he had lodged the complaint at 11.30 a.m., the police conducted a panchanama of the spot between 12.30 to 2.00 p.m., seized sample blood stains which were present on the sickle, blood on the sickle, blood on the deceased, sample of the deceased hairs, sample of the blood from the spot, pieces of the deceased skull, one red colour handbag and blue colour ladies bag and blue color touch screen mobile which he identified as MOs.1 to 11. He has stated that thereafter the police conducted inquest panchanama in his presence and after the postmortem of the body, gold ornaments and one footwear was handed over to him.
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019
39. PW.2 has also stated that panchanama was conducted between 12.30 to 2.00 p.m. when MOs.1 to 11 were seized. He has signed the panchanama, he has identified his signature, he has signed the panchanama which is identified as Ex.P.5 and signature as Ex.P.5(A). The inquest panchanama has been identified as Ex.P.6 and his signature as Ex.P.6(A). He has identified the photographs at Exs.P.2 and P.3. He has stated that the deceased had sustained injuries by sickle over her ear, eye, nose and jaw of the body. Inquest panchanama was conducted between 2.40 to 4.00 p.m. to which PW.3 was also a witness. PW.2 has stated that one mobile, bag, handbag and one sickle had fallen beside the body.
40. PW.3 has also deposed more or less on similar lines as of PW.2 and supported the case of the prosecution. Apart therefrom he has stated that the finger print expert had come to the spot.
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41. Both PWs.2 and 3 have supported the case of the prosecution and have established the spot panchanama and inquest panchanama which also include the seizure panchanama of the murder weapon - sickle and other material objects at the scene of occurrence.
42. PW.4 is the witness to the seizure of the T-shirt of the accused and the deceased. He has identified the clothes of the accused as MOs.12 to 18 and the clothes of deceased as MOs.19 to 21. Further, he has identified the seizure panchanama at Ex.P.7 in respect of accused clothes and Ex.P.8 in respect of deceased clothes. He is also witness to the seizure of CD at MO.23 and Ex.P.9. He has also stood the test of cross-examination and supported the case of the prosecution.
43. PW.5 is a witness to the seizure of the clothes of the accused and the deceased. He has also deposed
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 similarly to that of PW.4 and supported the case of the prosecution.
44. Thus, the witnesses to the panchanama, spot panchanama, inquest panchanama and seizure panchanama have supported the case of the prosecution and nothing contrary has been elicited during their cross-examination.
45. From the above, it is clear that the prosecution has been able to establish both offence under Sections 498-A and 302 of IPC and of the accused having committed the said offences. Thus, we find no infirmity in the judgement of conviction passed by the trial Court.
46. Insofar as sentencing is concerned, the trial Court coming to a conclusion that this is a rarest of rare case had imposed maximum punishment possible namely that of capital punishment to be hung by neck till death. The trial Court considering the
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 circumstances that the pregnant woman had been driven out of her matrimonial home and thereafter was residing at her matrimonial home along with her child who was born thereafter and leading her life by working in a beauty parlor as a beautician, the accused had persisted harassing the deceased and demanding money from her and when the money was not given in a preplanned manner he had in the bright day light at a public place assaulted/attacked the deceased with a sickle which he had brought along with him would establish preplanned, premeditated intention to cause the death of the deceased, came to a conclusion that the same would fall under the category of rarest of rare case.
47. The trial Court relied upon the decision of the Hon'ble Apex Court reported in AIR 1980 SC 898 in the case of BACHAN SINGH VS STATE OF PUNJAB and came to the conclusion that the present case is one which had no mitigating circumstances in favour
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 of the accused and or nowhere it is claimed by the accused that the deceased had provoked him or there was any strong motive to commit the murder of the deceased. The victim was a helpless woman and the entire incident being preplanned carried out in a bright day light in a barbaric manner.
48. The trial Court also relied upon the decision of the Hon'ble Apex Court reported in AIR 2000 SC 2679 in the case of RAM DEV CHAUHAN VS. STATE OF ASSAM and came to a conclusion that in view of the diabolic and dastardly manner in which the incident had occurred requires imposition of maximum punishment.
49. It is this sentence that we have been asked to confirm or otherwise in Criminal R.C.No.100002/2019.
50. In terms of Section 354(3) of Cr.P.C., it is clear that normally imprisonment for life is to be awarded and
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 only in exceptional circumstances death sentence is required to be awarded. Section 354(3) of Cr.P.C. reads as under:
"354(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence."
51. The Hon'ble Apex Court in JAGMOHAN SINGH V. STATE OF U.P. (1973) 1 SCC 20, after considering legislative policy came to a conclusion that normal rule is that offence of murder shall be punished with sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons are required to be recorded in writing before imposing death sentence. Thus, it is only under exceptional circumstances for exceptional reasons
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 and in extreme cases that death sentence could be awarded.
52. There cannot be a straight jacket formula which can be worked out as to in which cases the death sentence has to be imposed and in which cases life sentence has to be awarded that has to be decided to on case to case basis by taking into consideration aggravating and mitigating circumstances of each cases.
53. Certain guidelines were laid down in BACHAN SINGH V. STATE OF PUNJAB (1980) 2 SCC 684. Para 202 deals with aggravating circumstances:
"202. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v, Georgia, in general, and Clauses 2(a), (b), (c), and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances":
Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion:
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(a) if the murder has been committed after previous planning and involves extreme brutality;
or
(b) if the murder involves exceptional depravity; or
(c) if. the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed -
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.
203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019
54. Para 206 of the decision speaks of mitigating circumstances
206. Dr. Chitaley has suggested these mitigating factors:
Mitigating circumstances:- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. It the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct."
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019
55. In MACHHI SINGH AND ORS. V. STATE OF PUNJAB: (1983) 3 SCC 470, case the Hon'ble Apex Court has after considering several decisions at para 32 to 38, 39 and 40 held as under:
"32. The reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence-in-no-case" doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'Killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the
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holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entrain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:
In Manner of Commission of Murder
33. When the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,
(i) When the house of the victim is set aflame with the end in view to roast him alive in the house.
(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
(iii)When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II Motive for Commission of murder
34. When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (2) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 in a position of trust. (c) a murder is committed in the course for betrayal of the motherland. III Anti Social or Socially abhorrent nature of the crime
35. (a) When murder of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them with a view to reverse past injustices and in order to restore the social balance.
(b) In cases of 'bride burning' and what are known as 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
IV Magnitude of Crime
36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
V Personality of Victim of murder
37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder. (b) a helpless woman or a person rendered helpless by old age or infirmity
(c) when the victim is a person vis-a vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.
38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises. The following propositions emerge from Bachan Singh's case:
(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration alongwith the circumstances of the 'crime'.
(iii)Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019
39. In order to apply these guidelines inter- alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?
40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed here in above, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."
56. Thus, it is on the basis of the above that we have to consider whether in the present case the death penalty awarded by the trial Court is proper or not.
57. We have come to a conclusion that the accused is guilty of the offence both under Sections 498-A and 302 of IPC. The Hon'ble Apex Court and various High Courts have time and again opined that the death sentence or capital punishment is required to be
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 given only in the rarest of rare cases. This being premised on the fact that the accused ought to be provided enough opportunity to reform himself instead of resorting to retributive justice by way of capital punishment. Thus, the philosophy of sentencing leans more towards reformative punishment than retributive punishment. The act of murder which has been committed by the accused cannot be condoned in any manner whatsoever. However, we are of the opinion that the present case is not one which falls under the rarest of rare case category to require the imposition of death sentence. This is a case where there is one death caused by the accused of his wife. This is a case where the husband has caused the death of his wife which though reprehensible cannot be said to be diabolical or depraved. We are of the considered opinion that the ends of justice would be met by directing the imprisonment of the accused for reminder of his
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CRL.RC No. 100002 of 2019 C/W CRL.A No. 100237 of 2019 natural life without being entitled for remission or parole for a period of 30 years by applying the principles laid down by the Hon'ble Apex Court in PAPPU VS STATE OF U.P. AND ANOTHER cited in 2022 SCC Online 176.
58. Hence, we pass the following:
ORDER i. Criminal R.C.No.100002/2019 stands dismissed.
ii. Criminal Appeal No.100237/2019 is partly allowed.
iii. Order of death sentence passed by the trial Court is commuted to one of imprisonment for reminder of natural life with the accused not being entitled to remission or premature release for a period of 30 years. The period
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already served would be taken into consideration in respect of the above.
SD/-
JUDGE SD/-
JUDGE SH List No.: 1 Sl No.: 1