Karnataka High Court
Kallappa S/O Ishwarappa Sherewad vs The State Of Karnataka on 27 June, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRL.A No. 100427 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO.100427 OF 2019
BETWEEN:
KALLAPPA S/O ISHWARAPPA SHEREWAD,
AGE: 50 YEARS, OCC: HUDED ONI
AMMINABHAVI, TQ: DHARWAD
...APPELLANT
(BY SMT.SUMANGALA A. CHAKALABBI, AMICUS CURIAE)
AND:
THE STATE OF KARNATAKA,
DHARWAD RURAL POLICE STATION, DHARWAD,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. SEEKING TO CALL FOR THE RECORDS IN S.C. NO.114/2018
ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE AT
DHARWAD AND ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE
THE JUDGMENT AND ORDER OF CONVICTION DATED 27.09.2019
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT
DHARWAD IN S.C. NO.114/2018 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY
M.G.S.KAMAL J., DELIVERED THE FOLLOWING.
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CRL.A No. 100427 of 2019
JUDGMENT
Present appeal by the appellant-accused being aggrieved by the judgment and order dated 27.09.2019 passed in S.C. No.114/2018 on the file of the Principal Sessions Judge, Dharwad (hereinafter referred to as "trial Court" for short) by which the trial Court has convicted and sentenced the appellant-accused to undergo life imprisonment for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC" for short) and to pay fine of Rs.50,000/-, in default to undergo rigorous imprisonment for one year.
2. Brief facts of the prosecution case is that the complainant-PW6 alongwith his father Kallappa-accused herein, mother-Paravva-deceased and his wife Kavita-PW10 and his children were residing at Amminabhavi Village carrying on agricultural activities. That his father-the accused was addicted to alcohol and was demanding money from him and his mother-deceased Paravva. When they refused to pay the money as demanded, the accused used to quarrel, attempt to assault them with a sickle and was threatening them to kill. That on 27.03.2018 at about 02:00 a.m., his father-the -3- CRL.A No. 100427 of 2019 accused, had picked up the quarrel with his mother, and hearing the noise, PW10-wife of the complainant and the neighbours by name Basavaraj, Kamalavva, Suresh came to their house. At that time, the accused assaulted Paravva with sickle on her neck and right hand causing severe bleeding injuries. The aunt of the complainant namely Yallavva and Kamalamma had secured the ambulance and got the injured Paravva admitted to SDM Hospital and at about 04:00 a.m., she succumbed to the injuries. Thereafter, complaint at Ex.P11 was filed based on which the Dharwad Rural Police Station registered a case in Crime No.100/2018 against the accused for the offence punishable under Section 302 of IPC. On investigation, a charge sheet was filed against the accused.
3. The prosecution examined 24 witnesses as PWs.1 to 24 and also marked 32 documents as Exs.P1 to P32 and identified 10 material objects as MOs.1 to 10 and closed its side. After recording the statement of accused under Section 313 of Cr.P.C., in his defence, he examined five witnesses including himself as DW3 and other witnesses as DWs.1, 2, 4 and 5 and exhibited five documents and marked as Exs.D1 to D5.
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4. The trial Court on examination of evidence, convicted the accused of the offence punishable under Section 302 of IPC. Aggrieved by the same, the appellant is before this Court.
5. Smt.Sumangala A. Chakalabbi, learned Amicus Curiae for the appellant-accused reiterating the grounds urged in the appeal memorandum submitted that the order of conviction is based on the evidence of the interested witnesses namely PW.6 and PW10. According to the evidence of PW8- Basavaraj, PW9-Suresh had taken PW6 outside the house at the time of the incident and PW9 has deposed that the incident had taken place before he could reach the spot. That this part of the evidence has raised the serious doubt with regard to the very genesis of the incident which the prosecution has failed to establish beyond reasonable doubt. That there are serious contradictions and inconsistencies in the narration of events by the complainant, who is the son of the accused. That PWs.7, 8 and 9 have turned hostile and have not supported the case of the prosecution. Therefore, their evidence ought not to have been relied upon. That a combined reading of evidence of PWs.6, 10 and that of PWs.7 to 9 would establish that evidence -5- CRL.A No. 100427 of 2019 of PWs.6 and 10 cannot be believed. That the recovery of blood stained material objects has not been proved by the prosecution in the manner known to law, the process of recovery has not been corroborated by the evidence of PWs.3 and 4. Therefore, the entire theory of recovery based on the alleged voluntary statement is unreliable. That the trial Court has not appreciated the fact of prosecution not examining the neighbours of the deceased namely Basavaraj Mutanavar, Mallappa Karguda and Somanna Talwar as the appellant had taken specific plea of he being in Yalival Village, Kundagol Taluk on the day of the incident which circumstance was crucial as the prosecution failed to prove motive and commission of offence by the appellant. That the trial Court has not taken into consideration the evidence produced by the appellant and the explanation given by him in his statement recorded under Section 313 of Cr.P.C. That in the postmortem report, there is a reference "brought in dead" which is contrary to the deposition of the witnesses who has stated that she was alive and taken for treatment and died during the treatment and in the postmortem, the time of death is 24 hours and it is found that there was 200 grams of undigested food in the stomach of the -6- CRL.A No. 100427 of 2019 deceased. These factors indicate that there is serious lacuna in the investigation into the timing of the death of the deceased. That in the Search Register of the accused, there is a reference to white shirt and lungi seized from the body of the accused and there is mention with regard to the blood stains and that the voluntary statement of the accused was recorded on 27.03.2018 between 16:15 and 16:25 hours as per Ex.P26 and the accused had not been arrested. As such, the voluntary statement has been allegedly recorded when the accused was not in custody, thereby defying the provisions of Section 26 of the Evidence Act, resulting in non-reliance of the alleged information for the purpose of recovery of the weapon. Hence, seeks for allowing of the appeal.
6. On the other hand, Sri.V.M.Banakar, learned Additional State Public Prosecutor justifying the evidence that the complaint has been filed at 07:00 a.m. on the day of the incident and there is no delay. Though the eye witnesses have partly turned hostile, but they have supported the case of the prosecution and their evidence is corroborated by the evidence of the Doctor. The opinion at Ex.P15 regarding use of the weapon in commission of the offence has been established. As -7- CRL.A No. 100427 of 2019 regards the evidence of DWs.1 to 5 with regard to accused being in Yalival Village, the same cannot be taken into consideration, as the accused has failed to prove his absence and the said witnesses are interested witnesses. The plea of alibi has not been established by the accused satisfactorily. No grounds are made out. Hence, seeks for dismissal of the appeal.
7. Heard the learned counsel for the parties. Perused the records. The point that arises for consideration is:
"Whether the trial Court is justified in passing the judgment and order convicting the accused for the offence punishable under Section 302 of IPC?"
8. The case of the prosecution is based on the eye witnesses and on recovery of the material object namely the sickle upon the information furnished by the accused in his voluntary statement.
9. There is no dispute with regard to the fact of accused being husband of Paravva and they residing in Amminabhavi Village alongwith their son-the complainant-PW6, daughter-in-law-PW10 and their grand-children. That on 27.03.2018, deceased who had sustained blood injuries due to -8- CRL.A No. 100427 of 2019 assault by the accused on her neck and hand had died of the said injuries.
Cause of death:
10. As per the evidence of PW13-Manjunath Patil, who had conducted the postmortem of the deceased as per Ex.P12, following external and internal injuries are shown:
"1) Multiple abraded contusions present 2 no's of size ½ cm x ½ cm and 1 cm x ½ cm on right side of middle 1/3rd part of neck are present.
2) There is linear penetrated wound on right side of the neck in its middle 1/3rd and lower 1/3rd region. Size of the injury is 2.5 cm length x 1 cm width x 3 cm deep. Margins of the wound are inverted, contused border in lower margin track of the wound running postero medially, blood clots present. On dissection right sternum mastoid muscle a transverse 2 cm cut present, hematoma present deep to muscle, separation of lower neck structures revealed injury to neurovascular structures of neck, there is perforation of internal jugular vein 2cm length and front 2/3rd circumference of common carotid artery transversely cut 2 cm below its bifurcation. Clots and hematoma present in pre verterbral fascia for 20 cm length and right side of -9- CRL.A No. 100427 of 2019 trachea and esophageal structure, clots present over apex of right pleura.
3) There is lacerated wound on inner side and distal 1/3rd of right fore arm of size 4 cm x 7 m x bone deep, avulsion of soft tissue (muscles) present.
Blood clots present, margins are irregular, deeper structures visible.
4) Multiple abrasions over area 5 cm x 2 cm
away from injury No.3.
5) Multiple abrasions of size ½ cm x ½ cm
on back of right hand.
6) Multiple abrasions of size 2 mm x 2 mm
on outer side of right wrist.
The injuries mentioned above are ante mortem in nature and are fresh.
Time since death: Within 24 hours before postmortem examination.
Opinion as to the cause of death: In my opinion the cause of death is due to injury to vital structures (vessels) on right side of neck."
11. The cause of the death is shown as "due to injury to vital structures (vessels) on right side of neck". Considering the nature of the injuries and the opinion with regard to the cause of death and the deposition of PW13, who has deposed that the injuries found on the body of the deceased could be caused by the sickle at MO2 and her death was the result of such injuries,
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CRL.A No. 100427 of 2019 the prosecution has established that the death was homicidal. Though in the cross-examination, it was suggested that the injuries found on the neck of the dead body could have been caused by falling on the sharp objects, nothing has been established by the defence that the injuries were caused by deceased having had any fall as sought to be suggested. In that view of the matter, the deposition of PW13 is rightly taken note of by the trial Court.
12. This takes us to the next circumstance for consideration is, "whether the injuries were caused by the accused resulting in the death of the deceased?". In this regard, it is necessary to scrutinize the evidence of other witnesses.
Evidence of the prosecution produced to prove the guilt of the accused:
13. PW6-Mailarappa Sherewad is the complainant in the present case. He is also the son of the accused and the deceased-Paravva. Reiterating the contents of the complaint at Ex.P11, the said witness stated that on 26.03.2018, after the meal, they had gone to sleep at 10:30 p.m. The accused had
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CRL.A No. 100427 of 2019 come home in inebriated condition and was quarrelling with deceased-Paravva. Between 01:30 a.m. and 02:00 a.m., the accused had intensified his quarrel. Hearing the noise, PW6 and his wife-PW10 woke up and went to pacify the accused. Hearing the noise, PW7-Kamalavva, PW8-Basavaraj, PW9-Suresh Kumbar had also come. When all of them went near the accused to pacify, the accused assaulted Paravva on the right side of her neck by the sickle which he had in his hand. When Paravva raised her hand in defence, she sustained injuries on her right hand as well. Since she sustained severe bleeding injuries, they treated her by tying clothes i.e., petticoat and saree on her neck and hand. CW11-Kamalavva and CW17- Yallavva had called the ambulance and the injured-Paravva was carried to SDM Hospital, Dharwad for treatment, where she died at about 04:00 a.m. The said witness has categorically stated that there was light in their house and they saw accused assaulting the deceased in the said light. While they were treating the injured-Paravva, the accused ran away with the sickle which he had used to assault the deceased. The said sickle is marked as MO2. The witness has also identified clothes which are marked at MOs.3, 7 and 8 which are used to tie the
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CRL.A No. 100427 of 2019 injuries of the deceased. The witness has also identified the spot panchanama and the sketch at Exs.P3 and P4 and photographs-Ex.P5. In the cross-examination, the witness has denied the suggestion that the accused had 10 acres of land in Yalival Village and he was cultivating the same. He has also denied the suggestion that on the date of the incident, accused was at Yalival Village and on hearing the death of the deceased, accused had come for funeral to Amminabhavi Village. All other questions to discredit the version of PW1 have yielded no result. PW6 has withstood the test of cross-examination.
14. PW7 is Kamalavva, who is the neighbour of the deceased. She has spoken about the accused frequently quarrelling with the deceased in his alcoholic condition and threatening the deceased of eliminating her life. She has also spoken about the people of her lane advising the accused not to fight with the deceased. She has spoken about the quarrel that took place at 02:00 a.m. and she going to the house. She has also spoken about the accused assaulting the deceased on neck with the sickle and running away with the same and she alongwith others carrying the injured to the SDM Hospital for treatment where she died at 04:00 a.m. The said witness has
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CRL.A No. 100427 of 2019 been considered partly hostile. In the cross-examination by the prosecution, she has stated that by the time she went to pacify the accused, he had assaulted on the neck and hand of the deceased causing severe bleeding injuries. She has admitted that she had given the statement to the Investigation Officer regarding she having seen the accused running away from the spot with the sickle in his hand. In the cross-examination by the defence, she denied the suggestion that the accused had contracted second marriage and ever since then, his relationship with the deceased was not cordial and that since then the accused had been residing at Yalival Village. The witness reiterated that the accused was staying in their village Amminabhavi and denied that he was residing in Yalival Village. She has reiterated that the daughter-in-law of the accused had opened the door and the incident had taken place after they entering the house. She has also spoken about she giving water to the injured and tying her neck and hand with the clothes. She has stated that having seen accused running away that she was told about the accused assaulting the deceased with the sickle by the daughter-in-law of the accused. Nothing
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CRL.A No. 100427 of 2019 has been elicited to discredit the evidence of this witness regarding her presence at the spot.
15. PW8-Basavaraj is another neighbouring witness, who is son of PW7-Kamalavva. The said witness has also spoken about the alcoholism and frequent fights of the accused and he visiting the house of the accused at 02:00 a.m. on 26.03.2018. He has spoken about he having seen the accused assaulting the deceased with the sickle on her neck and hand causing severe bleeding injuries and thereafter accused running away by the sickle in his hand. The witness has stated that they saw the incident in the light at home. In the cross-examination, even this witness has reiterated, daughter-in-law of the deceased opening the door at the time of the incident. He has categorically stated that he having seen accused assaulting the deceased. He has also spoken about tying cloth around the neck and the hand of the injured deceased and taking her to the hospital. He has identified MO2-sickle used by the accused to cause injuries to the deceased. He has denied the suggestion of accused not being present at the place of incident. Though he has stated that Suresh had brought Mailarappa outside, he, his mother, accused and the injured were inside the house. He
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CRL.A No. 100427 of 2019 has further stated that PW6-Mailarappa was running around having seen the incident.
16. PW9 is one Suresh Kumbar. He is also a neighbouring witness. He has also spoken in the same line that of PWs.7 and 8 and he has also spoken about he having seen accused assaulting the deceased causing injury on to the neck and hand and running away from the scene of offence with sickle in his hand. Nothing has been elicited from this witness to discredit his evidence.
17. PW10-Kavita Sherewad, wife of complainant, daughter-in-law of the accused and the deceased. On the date and at the time of the incident, she was present at home. She has also spoken in the same line with that of complainant-PW6. She has spoken about she having seen the accused assaulting the deceased with the sickle in their presence. She has denied the suggestion that accused was not present and was not living in Amminabhavi Village. She has denied the suggestion that since accused having contracted second marriage, deceased was quarrelling with accused. She has emphasized she having
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CRL.A No. 100427 of 2019 seen the accused quarrelling with the deceased in alcoholic condition and he having assaulted the deceased.
18. From the evidence of the aforesaid witnesses, there is consistency in their statements regarding their presence at the scene of offence on the date and time of the incident and regarding they witnessing accused quarrelling with the deceased in an inebriated condition and thereafter assaulting the deceased with the sickle on her neck and right hand causing severe blood injuries resulting in her death.
19. PW11-Raju Malleshanavar is the scribe of the complaint-Ex.P11. Nothing has been elicited in his cross- examination.
20. PW12-Mahadevappa Madivalar is a witness for seizure of sickle-MO2 and lungi-MO3 which was seized at the information and instance of the accused near the pump house of Amminabhavi Village on 27.03.2018 at about 04:00 to 04:30 p.m.
21. PW14 is Suresh Shinganahalli, PDO of Gram Panchayat, Amminabhavi, who has spoken about document at
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CRL.A No. 100427 of 2019 Ex.P17 being the certificate issued by the Gram Panchayat regarding the property being a tiled roof house bearing No.378/1 standing in the name of PW6.
22. PW15-Sadashivappa Hadimani is the Assistant Executive Engineer, who has spoken about the sketch of the place of incident at Ex.P19. Nothing has been elicited from this witness.
23. PW16 is Head Constable, who carried the complaint and the FIR to the Magistrate on 27.03.2018 at about 07:30 a.m.
24. PW17 is the Woman Constable. She has spoken about conducting the inquest mahazar and receiving of the postmortem report and handing over of the dead body.
25. PW18 is the PSI, who was in-charge of the Police Station and has spoken about receiving of the complaint from PW6 on 27.03.2018 at 07:00 a.m. as per Ex.P11.
26. PW19-Mallikarjunayya is the Assistant Engineer, HESCOM, who has spoken about letter dated 22.05.2018 at
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CRL.A No. 100427 of 2019 Ex.P22 with regard to supply of power to Amminabhavi Village between 02:00 to 03:00 a.m. on 27.03.2018.
27. PW20 is the Head Constable, who has spoken about carrying seven sealed items from the Forensic Science Department of SDM Hospital and handing it over to the Investigation Officer.
28. PW21 is the Police Constable, who has spoken about visiting the mortuary of the Hospital on 27.03.2018 and conducting the inquest panchanama as per Ex.P1 and taking the photograph as per Ex.P2.
29. PW22 is Mohan Patil, CHC, who has spoken about drawing up of the spot panchanama as per Ex.P3 and a sketch at Ex.P4 and seizing of blood stained towel as per MO1. He has also spoken about arresting of the accused and recording of his voluntary statement and the accused taking them to water pump house near Amminabhavi Village and seizing of sickle and blood stained lungi as per Exs.P6 and P7.
30. PW23 is Dr.Mahadeshwaraswamy, the Assistant Director of RFSL, Belagavi, who has spoken about he issuing
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CRL.A No. 100427 of 2019 the certificate of examination of material objects as per Ex.P23 stained with human blood of 'A' group.
31. PW24-Prashant Nayak is the Investigation Officer, who has narrated the entire process of investigation. Suggestions have been made to the Investigation Officer with regard to the accused being resident of Yalival Village which has been denied.
All the official witnesses namely PW11 to PW24 have supported the case of the prosecution and nothing is established to disbelieve their version.
Defence evidence:
32. DW1-Nagappa Sherewad is the younger brother of the accused. The said witness has stated that accused has been residing in Yalival Village and the deceased-Paravva being the wife of the accused was from Amminabhavi Village. That the accused had contracted second marriage with one Mahadevi, who was from Belavadi Village of Bailhongal Taluk. That after the second marriage, the deceased-Paravva was quarrelling with accused. That they possessed 10 acres of land and apart
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CRL.A No. 100427 of 2019 from that they had also taken others land on lease and accused was in-charge of these lands. That PW6-Mailarappa the son of the accused and the deceased-Paravva was fighting with them for money and the property. That about 20 years ago, deceased had left and gone to her parental house and was residing in a rented house at Amminabhavi. That on hearing the news of death of the deceased, all of them had gone to Amminabhavi and accused had also accompanied them, but they did not go to the house of the deceased at Amminabhavi Village or to the graveyard and they remained in the bus stand. They all had tea together in the bus stand, thereafter, he did not know where did the accused go. That the accused did not even attend the funeral in the graveyard. That on questioning about the whereabouts of the accused with Mailarappa-PW6, he fought with them and they searched for the accused for no avail and after four days they learnt that the Police have taken him into the custody.
33. In the cross-examination by the prosecution, the said witness has pleaded ignorance as to the events that took place in Amminabhavi and also pleaded ignorance as to the killers of Paravva. He has also pleaded ignorance of the reasons
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CRL.A No. 100427 of 2019 accused contracting the second marriage. He has admitted that when the deceased was at Amminabhavi, accused used to go and stay with her. He has pleaded ignorance as to the happenings between the deceased and the accused and the manner of their fight. He has admitted that he is having very good relationship with the accused-his brother and would help him under any circumstances. He has admitted that accused and the deceased were doing grain business in Amminabhavi Village.
34. DW2-Basavaraj Pujar is a neighbouring witness. The said witness has stated that he visited the house of the deceased on the date of the incident between 12:30 and 01:00 a.m. and at that time, the door was locked and there were four to five people standing near the house. That he himself opened the door, when he called, Kavita-PW10 came and opened the door. At that time he noticed Paravva sleeping on the floor. That Kavita informed him that she had sustained injuries on her right hand. That PW6-Mailarappa was sweeping the floor, collecting the glass pieces. That Paravva was taken in an ambulance to the hospital and she was talking. That Kamalavva also went alongwith the deceased in the ambulance. That the
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CRL.A No. 100427 of 2019 accused used to stay in his house in Amminabhavi Village. In the cross-examination, the said witness has stated that he went to the house of the deceased as there was noise from inside the house. That he did not know about the injury sustained by the deceased on her right hand and he did not ask Kavita regarding the same. That he does not know who had given the complaint and what was the progress made in the investigation. That on the date of the incident, accused had come to his house, but did not tell him anything. That he did not go to the funeral of Paravva, as he had cattle in his field. That he does not know about the relationship between the accused and the deceased and what was the issue they were quarrelling about. He admits that the accused is very close to him, that he would help him under any circumstances including rendering financial assistance and giving evidence in the Court.
35. DW3 is the accused himself. He has stated that deceased-Paravva, his son-Mailarappa, his daughter-in-law- Kavita were residing in Amminabhavi Village, where he used to visit often, but he was carrying on his agricultural activity at Yalvial Village where his family owned ten acres of land. In Yalival Village, he and his brothers were staying together. That
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CRL.A No. 100427 of 2019 deceased-Paravva herself had performed his second marriage with Mahadevi. That he has no information about deceased- Paravva having been killed and he learnt about the same between 08:00 and 08:30 a.m. over phone when he went to toilet. That on learning the same, he and his family members and others went to Amminabhavi Village at about 12:30 p.m. in a vehicle. After asking his brother to provide tea to the people who had come with him, he went to the house at Amminabhavi Village, at that time, the people of the lane made him to sit in an Omni vehicle of one Raju and took him to Dharwad Rural Police Station. He was not allowed to attend funeral by the Police, who were asking to sign a document. The Police thereafter took him to Marewad where they handed over a sickle-MO2 in his hand and took photograph. The Police did not give him the lungi and thereafter took him to the Police Station and then produced before the Magistrate. He has stated that he has not been in talking terms with his children for the past 15 years and he has got nothing to do with the murder of his wife. He produced four documents namely Bank pass book-Ex.D1, RTC extract-Ex.D2, wedding invitation card-Ex.D3, ration card- Ex.D4.
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CRL.A No. 100427 of 2019
36. In the cross-examination, the said witness has stated that he does not know about the death of his wife- Paravva. He does not even know if she was alive or dead. That he did not meet his wife before he went to jail. But he clarifies that his wife was murdered. That deceased-Paravva being the first wife and was not having any health issues before her death. He admits that deceased-Paravva and PW6 were doing grain business. That about 13 years ago, his second wife Mahadevi had left him and had permanently gone to her parental house at Bailhongal and he had no contact with her. That he has been permanently residing with Paravva, but denied the suggestion of he causing her mental and physical harassment due to his alcoholic addiction. That he was arrested by the Rural Police on the date of death of his wife. That whenever he visited Amminabhavi, he used to stay with the deceased-Paravva as well as in the house of his sister. Referring to Exs.P8 and P9-photographs, he identified himself, Police and the panch witnesses. He states that the said photographs were taken near pump house.
37. DW4 one Yallappa Hooli is a villager from Yalival. He spoke about he and accused and about 20 people going to
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CRL.A No. 100427 of 2019 Amminabhavi Village for the funeral of the deceased in Cruiser vehicle and after having tea, the accused who went to the house did not return even to funeral.
38. In the cross-examination, the said witness has stated that he had no personal knowledge as to in which case the accused was involved. That he did not enquire with people the cause of death of Paravva. That he does not know the names of 20 people who had gone with him in Cruiser vehicle to Amminabhavi to the funeral of the deceased. He does not know whom does the said Cruiser vehicle belong to and who was the driver.
39. DW5 one Gadigeppagouda is a villager of Yalival. The said witness has stated that deceased-Paravva was staying in Amminabhavi with her children and accused was often visiting her. That they had gone to the funeral of the deceased at about 11:00 or 12:00 p.m., and the accused was with them. Thereafter, the accused did not come even for funeral. In the cross-examination, the said witness has stated that on hearing the news, about 17 to 18 people went to Amminabhavi for the funeral. But he does not know the names of those people. That
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CRL.A No. 100427 of 2019 the dead body was in the hospital which was brought in an ambulance at about 02:00 to 02:30 p.m., but he did not enquire the cause of the death of the deceased. But he heard people saying that she was not well. He does not know personally the cause of death of Paravva and what was the case registered against the accused.
ANALYSIS
40. From the perusal of the records and the evidence of the prosecution witnesses as referred to above, the accused has not made out any grounds to disbelieve the versions of PWs.6 to 10, who are his son and daughter-in-law and the neighbours. The said witnesses were present and personally witnessed the quarrel between the accused and the deceased and also the accused assaulting the deceased with the sickle on her right side of the neck and on her right hand. The evidence of these witnesses is consistent and is inconsonance with each other. Though the counsel for the appellant-accused argued that the statement of PWs.7 to 9 would indicate that PW6 was taken out of the house and he had not witnessed the incident, the said version is not supported from the records.
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CRL.A No. 100427 of 2019
41. Learned counsel further submitted that the entire process of recovery of MO2-sickle and MO3-blood stained lungi at the instance of the voluntary statement given by the accused at Ex.P26 is unreliable as the said statement was recorded on 27.03.2018 between 16:15 and 16:25 hours when the accused was not in custody. Referring to Section 27 of the Evidence Act, learned counsel submitted that such statement can only be relied upon if it was recorded when the accused was in the Police custody. It is seen that the accused was arrested at 04:30 p.m. on 27.03.2018 and the voluntary statement has been recorded between 04:15 to 04:25 p.m. seizure mahazar was drawn as per Ex.P6.
42. Further referring to the postmortem report at Ex.P12, learned counsel submitted that there is a mention of "brought in dead" in Ex.P12 which negates the very case of the prosecution with regard to the deceased having been taken by PW7-Kamalavva to the hospital for treatment.
43. At the first blush, though the aforesaid instances pointed out by the counsel for the appellant appears to be error or defect in the case of the prosecution, but in our considered
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CRL.A No. 100427 of 2019 view, the same are not acceptable to the extent dislodging the entire case of the prosecution. The evidence of the eye witness referred to above is categoric and unambiguous, in accused picking up quarrel with the deceased and assaulting her with the sickle causing severe blood injuries resulting in her death. There are no other possibilities of any nature of whatsoever creating any kind of doubt with regard to the commission of offence by the accused.
44. The accused has set up plea of alibi on the premise that on the date of incident, he was at his Village Yalival and in that regard, he has produced four witnesses who have deposed that they came alongwith accused to attend the funeral of the deceased at Amminabhavi Village. The law with regard to alibi is dealt with by the Apex Court in the case of Jayantibhai Bhenkarbhai vs. State of Gujarat reported in (2002) 8 SCC 165 wherein at paragraph 19 has held as under:
"19. The plea of alibi flows from Section 11 and is demonstrated by illustration (a). Sarkar on Evidence (15th Edition, p.258) states the word 'alibi' is of Latin origin and means "elsewhere". It is a convenient term used for the defence taken by an accused that when the occurrence took place he was
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so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligations is cast on the Court to weigh in scales the evidence adduced by the prosecution in proving the guilt of the accused and the evidence adduced by the
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accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the Court would evaluate the prosecution evidence to the see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to benefit of that reasonable doubt which would emerge in the mind of the Court."
(emphasis supplied)
45. In the light of the aforesaid provisions of law with regard to the alibi, in the instant case as already noted, the prosecution has established the guilt of the accused by producing cogent and reliable evidence. Therefore, the burden is on the accused to prove his case of alibi. As noted above, DWs.1, 2, 4 and 5 have not created any confidence in the mind
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CRL.A No. 100427 of 2019 of the Court to believe their version of accused being the permanent resident of Yalival and carrying on the agricultural activities. In fact, in their evidence, the witnesses have admitted that accused was visiting and staying with deceased at Amminabhavi Village. The accused himself has categorically admitted of he residing with the deceased after his separation from his second wife-Mahadevi about 13 years ago. The said witness referring to the photographs at Exs.P8 and P9 has admitted his presence and the presence of panch witnesses and he handing over sickle and lungi to the Police from pump house area. The documents produced by the accused at Exs.D1 to D5 are hardly of any assistance to the accused to prove his case of alibi, inasmuch as he himself and the other witnesses have admitted of accused visiting and staying with the deceased at Amminabhavi Village. The trial Court has taken into consideration these aspects of the matter and has arrived at just conclusion of the matter in passing the impugned judgment and order.
46. For the aforesaid reasons and analysis, we are of the considered view that the appellant has not made out any grounds for allowing the appeal. Hence, the following order:
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ORDER The appeal is dismissed.
The judgment and order dated 27.09.2019 passed in S.C. No.114/2018 on the file of the Principal Sessions Judge, Dharwad, is confirmed.
SD/-
JUDGE SD/-
JUDGE Rsh