Karnataka High Court
H C Somaiah @ Chami @ Choma vs The State Of Karnataka on 8 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A.PATIL
CRIMINAL APPEAL NO.265/2014
BETWEEN:
H.C.SOMAIAH @ CHAMI @ CHOMA
S/O CHEERU, AGED 55 YEARS
COOLI, KODAMBOORU VILLAGE
MADIKERI TALUK
KODAGU DISTRICT - 571 201.
...APPELLANT
(BY SRI T.A.KARUMBAIAH, ADV.)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY C.P.I.
MADIKERI RURAL CIRCLE
MADIKERI
KODAGU DISTRICT - 571 201.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP.)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE DATED
17.1.2014 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, KODAGU IN S.C.NO.36/2011 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 302 AND 307 OF IPC AND ETC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, BUDIHAL.R.B, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant-accused being aggrieved by the judgment and order of conviction and sentence dated 17.1.2014 passed by the I Additional District and Sessions Judge, Madikeri in S.C.No.36/2011 wherein the appellant-accused is held guilty for the offences punishable under Sections 302 and 307 of IPC and accordingly, he has been sentenced.
2. Brief facts of the prosecution case as per the complaint averments are one Moogera Mani, brother of the deceased has lodged the complaint as per Ex.P1 stating that he is staying in the address mentioned in the 3 complaint along with his family members. Nearby his house his brother Sanju, the deceased and his mother's sister and grand father are staying. Deceased Sanju was a mason. Little away from their house in the house belonging to one Subbaiah, the accused was staying along with his wife Meena and her children. Accused was doing coolie work at Kakkabbe. On 4.11.2010, accused came to the house. Accused and his deceased brother Sanju together went to Moornad and came back to the house in the evening. His brother slept in his house and on the next day morning he left the house at 7.45 a.m. to attend mason work. The complainant in order to attend coolie work came to Moornadu. At about 8.30 a.m. to the mobile phone of Chandrashekar who was along with complainant, wife of Chandrashekar, Mrs.Veda, phoned and informed that somebody has assaulted the brother of the complainant with Katthi and has murdered near Bhadrakali temple by the side of the road leading to Devarkadu Paisar. Complainant along with 4 Chandrashekar immediately went and saw the dead body of his brother. There were severe bleeding injuries at the neck of the deceased and his clothes were blood stained. Thereafter, when enquired, he came to know that there was enmity between deceased and accused in connection with the illicit connection of the deceased with the wife of the accused. As such, at about 8.00 a.m. on the said day, the accused person has committed the murder of the deceased nearby Bhadrakali Temple. Accused Somaiah absconded along with katthi after committing the murder. It is also mentioned in the complaint that after committing the murder of his brother, the accused by going to his house has also assaulted his wife Meena. Accordingly, complainant requested the police to trace the accused and to take appropriate action against him. On the basis of said complaint case came to be registered in Crime No.240/2010 for the offences under Sections 307 and 302 of IPC.
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After conducting investigation, the Investigating Officer filed the charge sheet against accused person for the offences under Sections 302 and 307 of IPC.
The learned I Additional district and Sessions Judge, Madikeri has prepared the charge and when the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried and accordingly, charges were framed and plea of accused was recorded and the matter was set down for trial.
In support of its case, the prosecution got examined 19 witnesses, marked 12 documents, so also, 9 material objects. After that accused has been examined under Section 313 Cr.P.C. and incriminating material was read over and explained to the accused. In response to the same, the answers given by the accused were recorded in the respective columns. On the side of the defence, no witnesses were examined or any documents were marked.
After hearing the arguments on both sides, the learned trial judge, considering both oral and 6 documentary evidence placed on record, ultimately held the appellant-accused guilty for both the offences under Sections 302 and 307 of IPC and convicted him for both the offences and sentenced him accordingly.
Being aggrieved by the judgment and order of conviction and sentence imposed and challenging the legality and correctness of the said judgment and order, on the grounds as mentioned at ground Nos. (i) to (v) of the appeal memorandum, the appellant-accused is before this Court.
3. We have heard the arguments of the learned Counsel for the appellant-accused, so also, the arguments of the learned Additional State Public Prosecutor for the respondent-State.
4. Learned counsel for the appellant-accused during the course of his arguments submits that the only eye witness relied upon by the prosecution is PW15- H.S.Revathi, the daughter of the accused who said to have 7 supported the case so far as the offence under Section 307 of IPC and the prosecution has relied upon the extra judicial confession alleged to have been made by the accused. Learned Counsel submitted that looking to the oral evidence of PW.15, it will not corroborate the case of prosecution regarding the extra judicial confession alleged to have been made by the accused. It is also his submission that even with regard to the offence under Section 307 of IPC, her evidence is not believable. She is a minor girl aged 17 years and her evidence is also not corroborated by any other independent witness. Learned Counsel submits that so far as the motive aspect is concerned, it is vague and there is no supporting material to show that deceased was having such illicit connection with the wife of the appellant-accused. As such, the aspect of motive is not at all established by the prosecution with cogent and acceptable material. Insofar as the spot mahazar conducted, learned Counsel submits the materials show that there were many persons gathered at 8 the spot but in spite of that the police have taken only selected witnesses as panch witnesses, which clearly shows that the panch witnesses are interested witnesses and they are not independent witnesses. Regarding the complaint Ex.P.1, he submits that the scribe who wrote the contents of the complaint Ex.P1 is neither cited as charge sheet witness nor examined as witness before the Court. Insofar as the offence under Section 307 of IPC, the injured has been examined as P.W.10, but she has not supported the prosecution case and to that extent she has turned hostile. Therefore, learned Counsel submits that in view of the evidence of the very injured P.W.10, it raises reasonable doubt in the mind of the Court that whether the evidence of P.W.15, the daughter of P.W.10 is acceptable. There is no consistency in the evidence of P.W.10 and P.W.15. So far as the FSL report regarding ascertainment of blood stain and blood grouping is concerned, it is the case of the prosecution that with the same weapon, the accused has committed the murder of 9 Sanju, the deceased and also caused injuries to his wife. Under such circumstances the FSL report cannot be relied upon and no importance can be attached to the said report. Taking us through the entire material, deposition of witnesses and relevant documents, learned Counsel submits that these important aspects were not properly appreciated and considered by the Court below and it has wrongly read the evidence and held that prosecution has proved both the charges beyond reasonable doubt. Therefore, benefit of doubt is to be given to the accused. Accordingly, he submits to allow the appeal and to acquit the appellant-accused by setting aside the judgment and order of conviction passed and sentence imposed. Alternatively, learned counsel also submits that the sentence imposed by the Court below for the offence under Section 302 of IPC is concerned is life imprisonment till last breath of the accused, which is not reasonable. Hence, the same be reduced. On these grounds he submitted to allow the appeal.
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5. Per-contra, learned Additional State Public Prosecutor submits that P.W.15, the daughter of the accused is an eyewitness to the offence under Section 307 of IPC. In so far as the offence under Section 302 of IPC is concerned, she has also deposed that accused, her father, has made extra judicial confession before her. In this connection it is the submission of the learned Additional State Public Prosecutor that she being the natural daughter of the accused person, there is no reason for her to implicate her father falsely and admittedly, when her mother has sustained injury, which fact is established and admitted even according to the defence. He also submits that looking to the evidence of the Doctor who examined the injured P.W.10, who was accompanied to the hospital by her daughter P.W.15, in the injury certificate he made a mention that they came to the hospital with history of assault by the accused person. The oral evidence of the Doctor is to the effect that accused caused injury by making assault on the injured P.W.10. Learned Additional 11 Public Prosecutor also submits that the blood stained clothes of accused were seized in the police station in the presence of panch witnesses and panch witnesses have supported the seizure of clothes. So far as the seizure of weapon is concerned, though the panch witness have turned hostile, but in the cross-examination by the defence, the witnesses have admitted even the seizure of the sickle. He submits that the articles i.e., clothes of accused and the deceased were sent to FSL and the FSL report shows that there were blood stains on all the items sent, except the sample mud. In the Serology report it is ascertained that the stains are of human blood belonging to 'A' group. As such, the witnesses have supported the prosecution case and the trial Court has properly appreciated the entire materials extensively, both oral and documentary and has rightly held the accused guilty of both the offences and has rightly convicted him. There is no illegality committed by the Court below in coming to 12 such conclusion. There is no merit in the appeal and hence, it is to be dismissed.
However, so far as the sentence imposed for the offence under Section 302 of IPC is concerned i.e., life imprisonment till last breadth of the accused, learned Additional State Public Prosecutor submits that the same is left to the discretion of the Court.
6. We have perused the grounds urged in the appeal memorandum, judgment and order of conviction of the Court below, oral and documentary evidence produced by the prosecution during the course of trial of the case. We have also considered the oral submissions made by learned counsel on both sides at the bar.
7. Looking to the prosecution material i.e., the averments in the complaint Ex.P1, the oral evidence of P.W.1, the brother of the deceased, so also, the oral evidence of P.W.15, the daughter of the accused, their evidence clearly goes to show that there was illicit 13 connection in between the deceased and P.W.10-Meena, wife of the accused. We have perused the cross- examination portion of P.W.1, so also, P.W.15. No doubt, suggestions were made to these witnesses that there was no such illicit connection in between the deceased and the wife of the accused. But the said suggestions were denied by the witness. As such, the prosecution has established the fact of illicit connection between the deceased and P.W.10-Meena.
8. Looking to the oral evidence of P.W.15-Revathi, the daughter of the accused person, she has spoken on oath that there was such illicit relationship between the deceased and her mother. There is no reason for the Court to disbelieve the evidence of P.W.15 on that aspect. P.W.15 Revathi has clearly stated in her evidence that she knows deceased Sanju and he was having house nearby her house. When the incident took place her marriage was not performed and at that time, she was staying with 14 her parents in the house of one Subbaiah of Kodambur village. She deposed that her marriage was performed one year prior to the date of her deposition before the Court. They are four children to their parents. When the incident took place, herself and her mother were present and they were staying in the said house and her father was working at Kakkabbe and he used to come to the house once or twice in a month. Since there was quarrel in between their parents, her father was staying at Kakkabbe. Her father raised suspicion that her mother is having illicit connection with the deceased Sanju and for that reason he was making galata. About four years back at about 8.30 a.m. when herself and her mother were in the house, her father came to the house along with Katthi and assaulted her mother near left side of the neck and caused bleeding injury. She also deposed that the accused told before her that he has committed the murder of Sanju and came to the house and asked P.W.15 to go and inform the parents of Sanju. After saying so, he went out of the 15 house. Thereafter, she took her mother to the Government Hospital at Moornadu. The Doctor gave treatment to her mother. When M.O.9 Katthi was shown to her and asked whether with the said object her father assaulted her mother, she answered that since four years have lapsed, she cannot identify the same.
In the cross-examination, she deposed that on that day her mother had not been to attend the work. The house of Sanju is at a distance of 20 ft. from their house. After her father told that he committed murder of Sanju, she went and saw in their house and even the mother of Sanju also has seen the same. She has stated that police have recorded her statement in the Moornadu hospital and also in the police station and they have obtained her signature. But what was written in the said statement was not shown to her. After galata between her mother and father, P.W.15 started to reside with her mother. She denied the suggestion that she is falsely deposing that her father assaulted her mother on the neck portion with 16 Kathi and also told before her that he has even committed murder of Sanju. When it was asked to her that when accused came to the house whether he was holding the weapon (Katthi) or he has taken the said weapon from the house and assaulted, witness has answered that he came to the house by holding the weapon in his hand. When it was asked to her whether material object like M.O.9 cannot be kept in the pocket, she answered that she does not know from which place he took out the same. She denied the suggestion that her father did not come to the house holding kathi and has not assaulted with said Kathi to her mother and also denied further suggestion that because of the old enmity she is giving false evidence.
9. The evidence of P.W.15 gains support from the evidence of P.W.13, Doctor, who treated Meena-P.W.10.
P.W.13 Dr.Lokesh has deposed in the examination- in-chief that on 5.11.2010 in the morning at 8.30 a.m. the injured Meena (P.W.10) was brought to the hospital by her 17 daughter for treatment with the history that on the same day Somaiah has assaulted her with Kathi. When examined the said injured, he noticed injuries on the person of the injured. One injury on the left side of the neck measuring 2x2inch, which was a lacerated wound and another injury at the right side of the neck measuring 3x3cm. He gave first aid treatment to the injured and sent her to another hospital for higher treatment. According to him, the injures were fresh and simple in nature. He issued the injury certificate as per Ex.P9 and Ex.P9(a) is his signature. When the weapon M.O.9 Kathi was shown to the said witness and asked if a person is assaulted with the material object M.O.9 there is possibility of sustaining such injuries, he deposed that if there is an assault by a sharp weapon, injury No.1 could be caused. Even he has deposed that there is possibility of sustaining injury Nos.1 and 2. He denied the suggestion that without giving any such treatment, he issued the false certificate under 18 Ex.P9. He has also deposed that he mentioned the history as told by the injured in Ex.P9.
10. Therefore, looking to the evidence of PW.13-Dr. Lokesh and the wound certificate Ex.P9, it supports the contention of the prosecution that PW.15-Revathi, daughter of the accused herself brought the injured Meena to the Hospital and injured Meena gave history regarding the incident. Therefore, even if PW.10 Meena turned hostile to the case of prosecution to some extent, but the evidence of PWs.15 and 13 fully supports the case of the prosecution even with regard to the extra judicial confession said to have been made by the accused before PW.15-Revathi. We have also perused the evidence of Investigating Officer PW.17-R. Satish Kumar. Looking to the examination-in-chief, he deposed in detail about the entire investigation that he has conducted in the matter and in the cross-examination, he deposed that when his staff produced the accused person before him, he has seen 19 him for the first time, but he has not got any report from them and he has already deposed that he has recorded voluntary statement of the accused, but he deposed that said voluntary statement was not found in the file. He denied the suggestion that his staff has not produced accused before him and he has not given voluntary statement also. He further deposed that he has examined Meena-PW.10, wife of the accused and her statement under Ex.P7 is in the file. He denied the suggestion that Meena-PW.10 has not given statement as per Ex.P7. He deposed that clothes on the dead body were brought by PC No.265-Rajesh and produced before him and same were sent by the medical officer. He denied the suggestion that he falsely deposing that said clothes were brought and produced before him and he has conducted mahazar for the seizure of the said clothes. So also, he denied the suggestion that he has further stated voluntarily that he has seized clothes belonging to the accused person. When he was asked, is there any difficulty to get the blood 20 sample of the deceased person for the purpose of sending it to the FSL, witness deposed that there was no such difficulty. He deposed that it is not stated that blood is of the deceased person. He denied the suggestion that though he has not conducted complete investigation in the matter, but he has deposed falsely. He also denied the suggestion that Kathi (material object) produced in the case and the accused person are totally unconnected with the alleged offence. He also denied suggestion that the clothes sent to the FSL are not at all clothes of the accused person. Looking to the evidence of Investigating Officer also, during the course of cross-examination, except making some suggestion which suggestion has been denied by the witness, nothing has been elicited by his mouth that he has deposed falsely. Apart from that, even there is no suggestion made to the witness-PW.17 that because of the personal enemity as against accused person, he has filed false charge-sheet against the accused person and giving false evidence against him. Therefore, 21 the evidence of this Investigating Officer-PW.17 deposed by him in detail about the investigation he had conducted gains support from other material i.e., evidence of PW.1 and PW.15 so also evidence of PW.10 Meena and PW.12- Doctor who conducted autopsy and PW.13 who examined PW.10 Meena and all these materials are also supporting the material evidence of investigating officer in this case.
11. Regarding recovery of the blood stained clothes under Ex.P3 is concerned, looking to the evidence of panch witnesses so far as clothes of the accused is concerned, they are fully supported the prosecution case and even in the cross-examination also the panch witnesses have stated that in their presence the blood stained clothes were produced by the accused person before the police. It is no doubt true that so far as weapon-knife is concerned, though panch witness turned hostile in the beginning but when this witness was cross- examined by public prosecutor after treating him hostile, 22 he has supported even the recovery of the blood stained Kathi and these aspects were further fortified by the report of the FSL. The FSL report Ex.P11 goes to show that totally 8 articles were sent and looking to the result of the analysis, only article at item No.2 was not stained with the blood and the said article is contained in plastic container, but rest of the articles as per the result of the analysis were stained with blood.
12. We have also perused serology report wherein also it is stated that the said articles are stained with human blood. Group of the blood is 'A' group as stated by the laboratory and PW.16-S.N. Gaonkar, Assistant Director from FSL, Bengaluru, is the witness who was examined by the prosecution to speak about the document Ex.P11. He has been examined and deposed in his evidence in the examination-in-chief that on 08.12.2010, Madikeri Rural Police, in connection with the Crime No.240/2010, sent 8 sealed articles to their office 23 and the seal on the said articles so also sample seal sent by the Investigating Officer are tallying with each other and the seals were intact. He opened the seal while examining the articles, he subjected those articles to chemical examination and in article Nos.1 and 3 to 8 he found blood stains and in article No.2, there were no blood stains. He has mentioned in his report that at which portion of the article, there were blood stains. He also mentioned that the said blood stains are of human blood and stains are of 'A' group and he has issued a report in that regard as per Ex.P11 and his signatures are Exs.P11(a) and P11(b). The articles were also marked as per M.Os.4, 5, 9, 7, 8, 2, 3 and 6. In the cross- examination, he admitted as true that there were four groups in the blood i.e., A, B, AB and O and in his report, he has mentioned that blood stains are of 'A' group. He admitted the suggestion that in our country about 20% of the people were having 'A' blood group. In the blood, there are RH factors and in the RH factors also there are 24 positive and negative. He admitted the suggestion that even in the 'A' group of the blood, there are 'A' positive and 'A' negative and there is a technology to find out RH factor from the blood stains. When the witness was asked whether such a technology was used in this case while examining the blood stains, witness answered that it will not be used while examining dry blood stains. Therefore, the technology for ascertainment of RH factor was not used in this case. When it was suggested that if RH factor technology was used he could not given a specific report, the witness deposed that report he has already given is specific. He admitted that in his report, he has not mentioned about the RH factor but he denied the suggestion that because of that reason his report is not specific. He admitted the suggestion as true that there is a technology to ascertain the age of the blood stains, but the said technology is not used in this case and the witness also deposed that Investigating Officer has not at all requested him to do the same. He denied the 25 suggestion that without examining the said articles through chemical examination he has given a false report under Ex.P11. Therefore, evidence of this witness-PW.16 also supports the report Ex.p11 regarding blood stains.
13. Therefore, if the cumulative evidence of these materials is appreciated together, it clearly suggests that the prosecution established both the charges as against the accused person, i.e., committing murder of the deceased so also attempt to commit murder of Meena.
14. We have also perused the judgment and order of conviction of the Court below and the reasons adopted by the Court in coming to the conclusion. Perusing these materials, the learned Trial Judge rightly appreciated the entire materials both oral and documentary and rightly came to the conclusion in holding that appellant/accused is guilty of both the charges. Perusing the materials, we do not find any illegality in the judgment and order of conviction passed by the Court below and do not find a 26 justifiable and valid grounds in this appeal to interfere into the judgment and the order of conviction passed by the Court below. Therefore, conviction order passed by the Court below for both the charges is hereby confirmed.
15. However, so far as sentence aspect is concerned for the offence under Section 302 of IPC, the Trial Court order goes to show that the appellant/accused is liable for life imprisonment till the last breath. But on perusing the materials, the mode and manner of committing offence, we are of the opinion that it is not a rarest of rare case to impose punishment of life imprisonment till the last breath of the appellant/accused. To that extent, we are of the opinion that it needs some modification. Accordingly, we modify the said sentence for the offence under Section 302 of IPC that appellant/accused has to undergo rigorous imprisonment for life.
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With this modification, the rest of the conviction order and sentence passed by the Court below is hereby confirmed and the appeal is dismissed as devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE BKP/PMR