Karnataka High Court
Sadashivu Balappa Samagar vs State Of Karnataka on 27 October, 2005
Equivalent citations: 2006CRILJ899, 2006 CRI. L. J. 899, 2006 (1) AJHAR (NOC) 301 (KAR), 2006 (2) ABR (NOC) 320 (KAR), 2006 (1) AIR KANT HCR 447, 2006 (1) AIR KAR R 447
Author: A.C. Kabbin
Bench: S.R. Bannurmath, A.C. Kabbin
JUDGMENT A.C. Kabbin, J.
1. By judgment dated 26-2-2003, the Sessions Judge, Bamako convicted the accused in S.C. No. 74/2002 for the offence punishable under Section 302 of the I.P.C. and sentenced him to undergo R. I. for life and to pay a fine of Rs. 10,000, in default to undergo S.I. for a period of six months. Challenging the said conviction and sentence, the accused has preferred the present appeal.
2. The case of the prosecution may be briefly stated as follows:
Anasuya (the deceased) is the sister of the accused Sadashiv Balappa Samagar. She had been married to one Ramappa of Mamadapur Village 13 years prior to the incident. About three months prior to May 2002, when the deceased had come to the house of her parents, she found the accused attempting to cut the penis of her child Shivappa aged about 5 years. That angered Anasuya, who abused and scolded the accused for his act. That created bad-blood between the accused and Anasuya. About 45 days prior to 29-5-2002, Anasuya came with her children to her parent's house. On 29-5-2002 at about 1.30 p.m., when Anasuya was sleeping near the front door of her father's house at Bavalatti, the accused Sadashiv went to that house with a knife and attacked Anasuya. Mallawwa, sister-in-law of the accused came to the place hearing the cries of Anasuya. Seeing her, Sadashiv (the accused) ran away. Anasuya had sustained grievous injuries and died within a short time. Her father Rangappa had gone to the land. Therefore, an intimation was sent to him. He came to the house. After seeing the dead body, he went to the police station and lodged a complaint, which was received by Veeresh Bhadrappa Belwadi, Police Inspector, Bilgi Police Station (PW 10). A case was registered against the accused in Cr. No. 113/2002. The accused was arrested and produced before the Magistrate, who remanded him to judicial Custody. The CPI took further steps to conduct inquest mahazar and for recording the statements of the witnesses. After further investigation, a charge-sheet was placed against the accused for the offence punishable under Section 302 of the I.P.C.
3. The accused pleaded not guilty and claimed to be tried. The prosecution examined in all 10 witnesses and closed its case. PWs 1, 2 and 4 are eye witnesses to the incident. P. W. 3 went to the spot after the incident. Pws. 5 and 6 are panchas. P. W. 8 is the medical officer, who conducted post-mortem examination. P. W. 9 is the Asst. Engineer, who prepared the sketch of the scene of offence. PWs. 7 and 10 are police officers.
4. After the case of the prosecution was closed, the accused was examined under Section 313, Cr.P.C. to explain the circumstances arising out of the evidence. The accused denied the allegations of the prosecution wit-nesses. No witness was examined on behalf of the accused.
5. After hearing the learned Public Prosecutor and the learned advocate for the accused, the learned Sessions Judge accepted the version of PWs. 1, 2 and 4 and consequently convicted the accused for the offence punishable under Section 302 of the IPC and sentenced him to the punishment as stated above. It is against that judgment of conviction and sentence that the present appeal has been preferred.
6. Dr. Priya Bhaskar, learned counsel for the appellant submits that if one peruses the prosecution evidence, one would find no motive for the alleged offence and that there-fore, the depositions of PWs. 1,2 and 4 ought not to have been relied upon by the learned Sessions Judge. As a second limb to her argument, she submits that the suggestion in the cross-examination, particularly, the alleged act of the accused of attempting to cut the penis of 5 years old son of Anasuya about three months earlier to the incident indicates a possible insanity on his part and that therefore, the learned Sessions Judge committed error in proceeding with the trial, without examining the mental condition of the accused and convicting the accused. On these grounds, she prays for acquittal of the accused.
7. Replying to this line of argument, learned Addl. G. A. Sri N. Rudramani, submits that there is clear evidence of PWs. 1, 2 and 4, which establishes that the murder of Anasuya was committed by this appellant and none else and that there being no specific plea of insanity taken on behalf of the appellant during trial, such a plea can-not be raised in the appeal.
8. We have carefully considered the points raised by the learned counsel for the appellant. On the question of motive, it is established that it is not necessary that motive for the offence should be proved by the prosecution. In the case of State of Himachal Pradesh v. Jet Singh , the Supreme Court observes with regard to motive as under:
When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution as it is almost impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.
As regards the contention of insanity taken by the learned counsel for the appellant, that the plea having not been raised during the trial, it cannot be taken up at the appeal stage. What was resorted to on behalf of the accused was, certain questions were put to show that perhaps the accused was men-tally affected. The learned counsel for the appellant points out to the incident alleged by the prosecution in which about three months prior to the murder of Anasuya, the accused had attempted to cut the penis of his 5 years old nephew and that Anasuya had taunted him for his incapability to bring his wife from his father's-in-law house and therefore, she submits that these things indicate a possible insanity.
9. It must be borne in mind that to claim the benefit of the provisions of Section 84 of the I.P.C., there must be specific plea at the time of trial and the evidence must indicate that, by reason of unsoundness of mind the accused was not knowing the nature of the act he did. No such material had been placed before the Trial Court and no such plea had been taken. This abnormal behaviour of the accused in attempting to cut the penis of his nephew aged about five years and leaving his wife in his parent's house, at the most indicates a sexual deficiency in the accused expressed into a positive act of cutting the penis of some other person. That indicates a medical imbalance of the accused, which has to be treated and it does not reduce the culpability by the accused. We therefore reject the plea of the learned counsel for the appellant that the accused was insane or that a possible mental imbalance would have made turn to commit such a ghastly act of murder.
10. The evidence of P. W. 8, Dr. Smt. Jayashree, Lady Medical Officer, P. H. C. Bilgi shows that the deceased had sustained the following injuries:
1) An incised wound present behind the rt. ear extending down to the neck measuring 4" x 2" x 1/2" and margins were clean cut and blood clots were present.
2) An incised wound lateral to the above wound present behind the rt. ear measuring 2" x 1 1/2" x 1/2" and margins were clean cut and blood clots were present.
3) An incised wound was present on the face lateral to rt. eye extending from fore-head to cheek on rt. side measuring 3" x 3" x 1" and margins were clean cut.
4) An incised wound was present near the rt. eyebrow, margins were clean cut measuring 1" x 1 1/2" x 1/4".
5) An incised wound was present over the upper part of the nose extending on to in-her angle of rt. eye measuring 2" x 1" x 1/2" Skin flap over the nose exposed, fracture of the nasal bone seen. Margins of wound were clean cut.
6) An incised wound was present over the centre of forehead measuring 1" x 1/2" x 1/4" and margins were clean cut.
7) An incised wound was present over the back of rt. shoulder measuring 3 1/2" x 2" x 1". Fracture of rt. scapula was present in its upper part and margins of wound were clean cut.
8) An incised wound was present over the rt. forearm extending upto rt. elbow joint measuring 3" x 2" x 1", the margins of wound were clean cut.
9) An incised wound was present over the rt. palm extending from rt. thumb up to wrist joint. Margins of wound were clean cut and measuring 5" x 2" x 1" and all the muscles and tendons were exposed.
10) An incised wound was present over the It. palm extending up to It. thumb with clean cut margins measuring 3" x 2" x 1" and all the muscles and tendons were ex-posed.
In the opinion of the medical officer, the injuries 1 to 10 had been caused by sharp cutting weapon like axe and they were sufficient in the ordinary course of nature to cause death. She has specifically opined that the death of Anasuya was due to haemorrhage and shock as a result of multiple injuries. It is therefore clear that Smt. Anasuya died a homicidal death.
11. The incident was fully seen by P. W. 1 (Mallawwa), who is none other than the wife of the accused's brother. She not only speaks about the incident few months prior to the death of Anasuya in which the accused attempted to cut the penis of Shivappa, but also as regards the actual incident. She is emphatic that, on 29-5-2002 she was sitting outside the katta of the house when Anasuya was sleeping near the front door of her (Anasuya's) parent's house. She states that the accused went to the house of her co-sister Laxmavva and asked for a knife and when Laxmavva said that she had no knife, the accused went away. When she and Laxmavva went inside Laxmavva's house, they heard the screams of Anasuya. Both ran to the house of Anasuya's father Rangappa. Her evidence has been corroborated by Laxmavva, who says that the accused had asked her to give a knife. The evidence of P. W. 1, further shows that when she went inside the house of Rangappa hearing the screams of Anasuya, she saw the accused assaulting Anasuya with an axe on her head and other parts of the body. She further states that as the accused showed the axe and threatened them, they retreated and that facilitated the accused to run away with the axe. This is spoken to by P. W. 2 Laxmavva and P.W. 4 Sayyadsab also.
12. This P. W. 4 is an independent wit-ness and according to his evidence, on hearing the screams of Anasuya when he went to the house of Rangappa, he saw the accused assaulting Anasuya with an axe 2-3 times. He also says that the accused ran away holding the axe and he found Anasuya dead. We therefore do not find any reason to discard the evidence of PWs. 1, 2 and 4, who have stood the test of the cross-examination. The cross-examination has not brought forth any material to disbelieve the version of PWs. 1, 2 and 4. Hence, we have absolutely no hesitation to accept the said depositions.
13. For the above said reasons, we do not find any ground to disturb the finding that the accused is guilty of the offence of murder punishable under Section 302 of the I.P.C, As regards the sentence, it is submitted by the learned counsel for the appellant that the circumstances indicate a sort of mental imbalance of the accused, which is evident from the evidence of P. W. 1 also and that therefore, leniency may be shown to the appellant.
14. Mere mental imbalance or abnormal behaviour of a person does not reduce the seriousness of the offence which he has committed; and imprisonment for life being the minimum punishment, which could be imposed for the offence of murder, we do not find any merit in this submission. But, as regards the fine of Rs. 10,000 imposed by the learned Sessions Judge, we find it to be on the higher side under the facts and circumstances of the case. Therefore, we find that imposition of fine of Rs. 1,000 would suffice in the present case.
15. For the above said reasons, the ape-peal is dismissed. The conviction of the appellant/accused for the offence punishable under Section 302 of the I.P.C. and the sentence of imprisonment for life imposed by the learned Sessions Judge are confirmed. However, the fine of Rs. 10.000/- is reduced to Rs. 1,000 and the default sentence is pre-scribed as one month's S.I. if the fine is not paid.