Karnataka High Court
State By Banavara Police vs Vedamurthy @ Mallikarjuna S/O ... on 28 March, 2008
Bench: V.G.Sabhahit, B.V.Nagarathna
-1-
";"E-¥ THE HZGH COURT 0? :<AR1~sATm-(A AT BANG;;"~.:§}§RE~w'.'jg .
DATED THZS THE 28"' DAY OF}j€ARCH.*2%'G$3::j'_Vv "'.
PRESB§T
THE HON'BLE Mr.JUSTICE V Gfi3AaHAH:fg
AN3 .j»_ '.2'_Va:*,"
THE HON'BLE Mrs.JUSTICEV$'V_NAGARATHNA'3
cr1.A;i}i'g;__, 14:Vé(_éa:;3_. "~.«
BETWEEN
STATE H'! };><;~;I <:E " APPELLANT
(B3,? vvgmrgn, ECG? )
[,...}
@"V«Mza2:.LI,2<ARJ1rx:A
. ::',z.'{;»' c§=:AN3aAcHAR3:"""
. W}--T=&1D_AB§:3LIT~..23 YEARS
;g:;é*2.::cLI:,T;I:a2i_s'1f. AND CQOLIE
2 MP €,'PiZ3;I~33';¥E~';?--"siC'}iE%.Fii
SK) L-:x,T'a-. E3UPP§NNAC§{ARI
, ma ABGUT' 65 YEARS
x EQQICLETUREST
* BELONG TO VISHWAKRQVIA BY CSASTE'
Rio m7:»1aN,r>.§-LZXLLLI VILLPQ
C{~KI<M.?G§%.LUR TALUK . .. aESwoN®ENT§
{By M/S BGPAPJNEX & H K SRTHISH}
_ 3 M
the parties before the trial Ceurt_jerefQae,*
foliows:-
It is the case of j preeeCution_"ethet_
Lakshmidevi daughter of PW515 end sister§efv?Es§9t
& jflfi was married tx> Aceuseda»No.1~Vedamurthy" on
25.4.1999. On the game ,da;{* Gewrammé* younger
sister of Accused Ne{1¥Vedaeurthy was married te
pw emeharmachagieeldek" brother c§_'Lakshmidev:,
the deceased}. Teeuseeg Ne.2%%I P ,Chaedracheri is
the feteer,efeEeCueefi°Ne:1;
3, Itx is,_theI_further' case of prosecution
" that taiterx marriwge; Lakshmidevi went to the
'<gogse ref *ecceeed for leading marital life and
Gowramma-eieter of Accused No.1 came t0 the house
-ef efiggi get lead marital life. The relation
'between VPW~9 and Gowramma was not cordial and
rfiewremma had returned to her parents' heuee - the
, heuSe efi the accused. Thereafter, there was
"panchayeth te receeciie the differences between
\§»§
_ 5 _
day, Ema proceeded tn: the scene cfi? Qffencévficqse
of the accuged at Mach@nah3lli_,§fid1*in, th
presence of Panchayathdars;_apprehénded_ accuse
No.2~Chandrachari at 10 p.mf;: near "BfiS*f3t6§V $t
Javagal. On interfogatfibfi' ;§éQ§s@@-- "'N§.2"
Chandrachari volunteereaV:§'#p%Q €§% §é§d body of
his daughter~;§~i§w»La%§Em%dé§flE flfiifig: had been
buried and his yfififififiaggifitgfiéfiegt is marked as
gar EX p1v3 w v ~ . .
5. '@§t'L i$ ififi§e¢ 4fu§tEez case of the
prssecutionx;uthaf_aiatfifised No.2 lead the
'investigafifig dffi@er,V Pancha PW--Z3 andT pointed
0pt a @i3éé afiating that they had buxied the dead
body bf Laksfimifiévi at that place, the dead body
Vof Lakfihmidevi was found, it was exhumed, the
4 ifl@UeSt wa3 Conducted at the spot and there were
iéfixrieé on the dead body of Lakshmidevi. The Sub
fiivi$iGnal Magistrate~PW 13 conductad inquest
V »Q§er the éead body. PW 7»p.s.: and pw 8--Medicai
xx}
=uQ2)9mx7
-3-
Ramanna, accused led police and the said Eafichae'
ta :3 place near the land of CiR;Se@mg«é fees; I
away from Javagal (Javagal Macheaahalllf*reaeg.
After reaching the said lpleee, lhea'seeefee""ofie
more Panchayatder--Gu;umu:th#l. {QR lfi21},J3 All
Vedamurthy then led p51lce7afid;fi駢§§s to a place
in the land of sald Swamy ;fia,p¢l5:ea amt a blood
stained stone anfllbl0ede:ain5il§ifi§ on the spetm
IVIO-11 and--'lv..§};c;-'1.é'*:;,vv;:e';s§;e¢t':'v-egg; and else 940-13
eample earth aneffixepafee a Mehazar as yer EX P3.
6,u If 'fis_f the": further case of the
' prose§ut;Qn,that there were bleed stains in the
lpétbewayyet a distance of about 8G feet from the
spet afid fiflelfilood stains found on the said path~
l, way else wefe seized as per MQ"18. He prepared
V"A$ketCh of scene of offence as per Ex P28. Accused
,§0@1 led police and Qanchayathdar towards Javagal
~ffipfe 1 k.m, to the land sf Sippegowde situated en
ffthe southern side ef the road. Then accused
\J:¢'%
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produced a spade from the said V
bush in the said lanai he
as per Mans 14 and 15 seicuzé mah_:réa.t:i-J.§'.x ':';P"'?".
Then, Accused R0. 1 led
to R M c Yard, ditch,
where he had. burnt were seized
under fifieteafter, P'?-I-16
returneci itc Pclice Station with
accuseci' i5aec12a}*e.thdars--9W 5-Haridas
and = 4' 't Then Accused. 1~Io.1-
Vedanmrtiiyé iiecixi' and Panchayetdars to Vikas
at V't.T1ai3-tkaziayakanahalli owned by PW 4-
:C};erinai?e:p . et the instance of the accused. PW-4
"'p.::c'<_:iuceci"" of leg chain and a pair of toe
ring. as M0s.4 & 5 at the instance of accused
:"e.;zd, t1.1'e--"sa:ne was seized under Maha.zar--Ex P5. PW'-
16. cc-zcorcieci the statement of Chennaram-PW 4,
cpetzxrned to Arsikere with accused No.1 and on the
sauna cay produced beige:-fie the Court and recorded
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with the innocence of the accused and ccnsistent
only with the guilt of the accused§"r:
10. Learned HCGP subeitted that men filine
of any comelaint regarding missing or the wife of
accused No.1 shows Vthet'iheiteLg.inet make any
attempt to Search for his wife;Laksheieevi and on
2é.1.2000 when;1":%:#§-9V ni=;~..a §ct§rne.4"'tjclfltizeijihouse of the
accused, accused gave? an~ evasive reply that
Lakshmidevi_was¢m;ssing and accused No.1 éid not
make aey eaquiry with the parents of Lakshmidevi
that whether she was gene there and the further
= circumstances provefl by the prosecution namely.,
reccveryf"cfscthet ornaments and the accused No.2
'l's,pointieg _cut'}the place where the incident
°a_cccurred from where sample mud was recovered and
"* the Serolegy Report and Chemical Analysis report
t._ihSpected the bleed stains found on the clothes
uane the blood belonging to 'G' group and recovery
cf spaee and handle of sgade which were alsc
{flux
§»v
.15..
th@ Judgment of acquittal passgd byr"thé atrial
Court is liable to be Set asifier
11. On the Gther hahd, rléarned»3C¢uhs§lh
appearing for the accused Nbélfi an3u2°Stbfiitted
that PW Qwthe Comglaifiaht héé hot suypértéfi the
case of tha presacutioniregardingriil"treatment.
have also §hh¢t,""suppQrtéd '_the,' case of the
prssecutian régarding iii treatment and recovery
made on the"basrs bf thefiveluntary statement Qf
accused._Nos[1Vtand* 2. hava not been proved in
fi'a¢¢®rdénQe, with law} However. strong suspicion
Cann0t*taKéfi¢iace of proof and mere axhumation sf
deafl.hddy at tfitshmidevi and the fact that there
'Were rrjhriéh on. the dead body of= Lakshmidevi
hutfipfildwhot inevitably lead to the conclusion that
rthéttéétused has ccmmitted the offence alleged
uéqarnst them and it was the duty cf the
x"§rosecutiGn to prove beyend reasonable doubt that
\:m>5
%,fi
_ 15 _
the accused are guilty" 0f the _offefiéese2c$arged,Vu
against them and the trial Cofi;t;haé'fiQhtly°§eldye
'E-
that the presecution has ,:a11¢g 'to aprgvg tueé
guilt of accused Ncs.l e§5V@? and therefote the
Judgment of acquittai is eetfltied to be eoefirmed
and does not warrant interference in this eppeai.
12. Hevi$gi%gg§%fiete tee eefitentions urged,
the eointsi~t§et§ at;eewtfegUf%e§Vtdetermination in
this apéea}:ete aeKtoi:ege:%
3" ehe£he:'=thet fifiéifig of the trial Court
*that :fie"§reeeeution has failed to prove
t Eeyeeq reeeeeable doubt that the accused
uV'§eef5elefid 2 have committed the offences
pmetefieble under Sections 302 and 201
":§C., is justified or calls for
ttx interference in this appeal?
t; 2. What order?
\%té
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and we answer the above points as follm-4rsu_::>~.-_ V
13. me finding of the .cour1_;. tiza
prosecxzticn has failed to T tlié'
aiileged against the accuscd: kT9c. " and
comnitted the offencc _ Sections
302, 201 read wit§;"~.iT3¢ .fl3.--:.;gb1e to be
modified and am-._- hi-:fl."<:E.-- ijjtixag-,__ 'iudgxnent of
acquittal V' acqtlitting
accusecii Na. ..tt;'é'~::cf£chces punishable under
Secticns A 3;_>2- :15: .-- :i:;§i$1e to be set aside and
V of acqtzitting accused 15105.1
'c>'" 'having coxrmittcd the offence under
'se§¢t:§g,...f2V9, 1VI:-zééz: is ::.ia1-.>3.e to be set aside and
thc '--.._prc.sec1ition has yroved beyond reasonable
T "-'««__ t1cubt "that accused No.1 has ccmnitted offence
under Section 302 IPC. , by causing
of his wife Lakshmidevi and accused z~¥oa.1
Lg
m 13 _
and 2 have comnitteti offences "
Section 291 read.with Section $4 feet} *i-n
14. In View of our on
accused No.1 is liable eentencefl. flifor the
offences 201
IPC and accused No.2H sentenced
for the offenc'ee:_' 201," as
per the sing; afiaez £5; the feilcwing;-
7e =£RgA3oes
The Vtpxeeecetient relying upon the evidence
of £'$§§s§1~ to engithe contents of the documents
e.$:'«per_VbAE:xA--£v51--Vto P32 and MOs--1 ta 18 to prove the
§:1i1t« die F:'.}:;_e' . Ieccused .
it .'....5;';.e PW' 1-vishwanathachazr, according to the
tezzaréoisecution, has been examined before the trial,
-- t;:'ucjs:n.-iii to prove that accused No. 1 had made a extxe
~ 'j'1id.ic.:ia1 confession before him of having
K54
...21,...
18. PW é~Chennaram is the ?aWflb§Q%§:;l:wg0
at the instanca of accused prsduced MOS 4,a§d 5_T
and the same were saized under Mahazarmfixffiéfiz
1§. PW 5--Haridas i$V'é» w1tnes3 5t@' the
Mahazaz regarding seiéuxe of Méfi §<§nd $ ffbm the
shop {sf PW~4 at the Q_f ["-{*._'}2.§é'*_accused on
the basis of théDvolufit§fy¥sfiafeméht«§iven by him
and preparatioh,éfURéfi$;§r:E: ?5,_
20. PW'=6--M E? Laxmén Wis ea witness to the
Mahazar _rsgafdihg_ the "fecover of atone and
,bl&Qst$ihd,éaxth fin&@rVEX.P6 mahazar and Exs P14
§fid':?i5,AVfihé"g§pade ané handle of sgade under
y_ Maha2arFEx §§Q_f
*A21.. E§ 7~T Nagesh Shetty is the P.S.I., who
tRxre§§stef@d the complaint as per Ex P9. As per Ex
P§'a§prehended the accused No.1 on 2.2.2000 and
\;V%
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accused No.2 on 26.1.2G00 and
the investigation.
22. 9:»: 8-D:r 2 c ;:a1s.n;,~n»}»;a_;¢a1V
conducted the Post léorteng' ogfgr the
dead body of Qiépfised in
her exaz:;i.natio1V'1--inwcA1f}ig§'é-*'f_V,. $}§§z to tize
place where had been
exhurned Mloxtmn exaxnixaation
at the s~;aoi-Q' :?'§;i; and found
the followixig é~.xtér::zai:_' ~.ii:§.firi¢--s: «~ M
V "'3?'a..ce appearance, chin
v. tongue
Vu-*aV.é' = body was flaccid (rigor
1'no.i{: t;i;s"" aivsent} both ear Jabules
1ré;r9__ AT from above: darwnwards.
_ _ 4' __Rednes:a:s jseen on the fawn, right side of
ugzgpar part of the cheek and
&' all theta skin peeled off
{postmortem} lifashezzman feet and hand
39613 .
..v%/E
N
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SKULL lNJURZE§ m_
Irregular fracture of $etfi perfietaf
and mastoid bone3',extehdihq frame
right mastoid
parietal and jeft perietei bones tof
ieft parietal aefi left~fiesLoid,
Compression fracture on left mastoid
A"$mei£ heemetems seen beneath the
Skin on';eft*pezietel region.
Contgsien injury on left forehead.
f3A:elacerete§W_weunds seen on right
VW3f;PoSte@ior one measuring 2 cm X 2
Skin deep and it is
cfim,'
{ iffegular.
AA gub£'2 ems infront of the 1" injury 1
cm x 2 ems skin deep.
C) Injary of the Qmiinjury 2 cm X 2
cms. Skin deep.
kafi»
ific}uding*_ rfiehfe
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d) 2 ems. above the .;:::fi'2b._
ems. skin deep. "
She has further deposed pn .<4."..i.$.«.1'a»<Vf.:t':i:_c:§i:a;V,"'
faund the following in;t§xna.1l-'*iiij11figs:--'"* '
svfiacerated <;1':a' ' I $1 hgneath
of fractured jmaaagstgsétl
brain
csolmmz card not
of Manaiible
in ff:-.'v';!'_'1ez-_eav fracture of
kyéid : .b¢n§".:'\.l fractures of
in the middle
c;i:"'aAtezn1m1".V"* '
" .ha.sa '£u;1§thgr deposed all the infiuries were
izivllvtnature. Death of Lakahmidevi was
due fits} azzd. haexnorrhage as a result of
'"i1.1jut;:_j.esV" to vita}. organ like brain. Time sin<:.e
Lalzsmnidevi was 5 to 6 Gays. prior: to
.._4V'§_;wcs:5lt~mortexx; examination. The infmries sustained
bl by Lakshmidevi can be caused by throwing stone.
'\;i'\,%
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Lakshmidevi. Accused told thee §eksEmifiefii¥;heex_?
left the house. He ageited_ till: eveninqf;3fid: his"
sister difi not return. Then he went and ififormed
Chikmagalur police and. he; fiid 'meta file 'written
complaint to the Paii¢e"anfij his zwife so far
returned to his ,house end" identified Ex 99"
Complaint """ "fiiefi by= fiim} He "has further depoeed
that after the fieed.b9dy ef Lakshmidevi wag given
to them after post mpftem examination they buried
1
_the deed lady df his sister in Machenahalii. At
*:his=,s:ege,a the witness was treated as hostile
sihce ihe f§;fi[ not support the case cf the
Vproseeutiefivin respect of the averments made in
"":hexVcompieint regardifig ill treatment given to
ifiekehmifievi and was permitted to be czos3~
.,8Z§gined by the Adéitional Public Prosecutar.
~.§ut nothing has been elicited in his cross"
..29....
examination is suppoxt the V ca$e"""ef."*fihew
2
prosecution regarding the ave:mehtg'mede."3fi"
V ?.g_ 'l
complaint filed by PW--9Lg He Khas defiied_ thei
suggestion that the accueeui_wa$ha%llLteeating
Lakshmidevi and he filed a gaggigint beiehe the
police about the sahel_ihhatr4heflie deposing
falsely by takihg-mehey frog Ehe aeeused and he
has comprGfiiaé@r"hhe"$eaéel audr he is deposing
falsely"befahe hhe Qoufh. it is elicited ie the
crossmehamihatieh efkhfieg lg para é that one week
thereafter g_ . A3~Vedamurthy, his wife,
w_Shanka;aehari,"Papaehari and Thimmegowda came to
'atheir_ house, aa panchayath was held and it was
decided thatvgéwramma, his wife shall remain in
_his heuse§'l% is false to suggest that inspite of
.lwfieCi$ion= of panchayath A1~Vedamurthy took back
luhis'wwife to his house aadl while returning he
h"ȣhreatened saying that his slate: Lakshmidevi
twill be ill treated in his house.
\&bg
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24. Em' 10--ShanJ«:arachari has
by the prosecution z:egaxd.i:e§';b pa;§e1f:.e§§a'Eh' eTsT
Gowramna wife of PW'-9 an¢i_s;i.stA:ex"*o£ aceueeci :é'o.°l
had left the marital and._'_gc:.§e 'her
parents houae tiie ill
treatment given to has deposed
in his marriage of
Laicshmidevii" 21.,' and marriage of
1.with 9w»-9 on the same deposed about 6 or 7 month,s_v af§iervV'ma;;---ri'as_.ge*';'V 3. panchayath was held in §rillageA.'" 'v&.--:::ing panchayath A1-Vedamurthy, Thinmegowda, Eapachari, F¥~I«-9, Dharmec. " ii myself were present. The said j 4' was sunmoned by PW 9-~Dharmachari and persons. Gowrarmza @ Radha. told that aha .' iiet able to work in the house ofi PW-9 and she "wants to go back. to the house of the accused. They advised PW' 9-Dharmaehari and his wife Va. '3
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Lakshxnidevi in the presence of CW--«32_..t-2'1"':3§V.'V--l.fi'here"
were about 'F injuries on the perisen'.nTo:£A' body, during inquest he recorded 'hy the $tai::mé1'en't of Gowranma (PW--"i l, V" . , Venkateshachari, Ram§fhaZ'._ Esheerafike and prepared inquest it 'E25. He sent requisition ,1 and to Arsikere and hold post mortezn_.-- dead body of I.a.ksh1ni'devi .V V r , medical officers visitedlthe conducted post mortem exa1:zi.iiat;ion. ..3£ter I post xnortw ex:a.m:i.ne.tion the 'V on the dead body of I.akshm3.' devi as I were handed over to the police.
It '--is V_vel.i§=.:ited further in examination-:i.n-«chief the proceedings pertaining to exhumation of dead body at the instance of accused No.2 and accused 510.2 lead himself panchayatdars, police and pointed out the place where the dead body was
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27. PW 13 is one of the panchas,V.A.s}:ho'V'*'§é=;ax:s.. present at the time of exlzumatioxa of"'«':_:thee.V: a body and he has deposed in «thief that he was also present it was prepared and he was __ Ex * it P25(a) and nothing has been eliciten in_tge cross examination to that he was the witne_s.e_ fox" " eccuseci No.2 led. po11ce,ith§§§¢1£._kefibfereiéianai Magistrate} and __ spot near the land. of Seetharexxzeshettgr place where La}-mshznidevi dead body §ae_ex§ufiad; At the said spot, the dead Cr ttttt H i was found and the same has foeeni ' V. Therefore, it is clear that exfi.;§ence~ PW-12 czlearly corroborates the V'-».e%r;¥.dei;o}e7 of PW--12 regarding exhumation of dead and preparation of inquest by PW--12.
28. PW lsweowraxrma is the mother of Lakshmiéevi-the deceased and she has deposed in gétfi _ 40 _ her exanzinaticnwinwchief abeut the performance of marriage of Laksimidevi, marriage of sister of accused No.2 with her son WW9 and the marriage. of Iaakshmidevi her daughter with a¢¢used.'..h€$ee.V'1:"r:' the same day. She has further deposed tlizit V' V' time of marriage, they had V-Igiiren it nese stud, siiwer leg chain, eilireriiy Tali to her daughter Lakgrmdeéi V a_r;¢1i"..;i;c.-envtiried v "
the said omaments gt i2gndsa.d'*«o1gser_5at the time' ri:a;fge}* marriage, I..a3:shm:.'dev:i. started resiciixig .e£$¢used in their house anti wife'.;j'cSfA. her' 9 started residing in her vhouee. were not ill treating Lakshnu.'dev.§.. daiighjzéi-.,.1~Laksmaidevi died about 11 rmnths bat:i:__. (witnese exazrined on 2.12.2000) She has TR"".__VV"fj:1rther__tleposeci that wife of PW Qwnharmachari had it to the house of accuseé during sankranthi festival after their marriage and she did. not return to their house and no Panchayath was held. K545 ..42..
prcsecuticn regarding ill Ji;A;;§eb_at::aeg:gg~--._ ta; Lakshrnidevi and motive for the affence.
29. PW-16 is the K sis is already referred thé V:AEacts of the case. P'W--;_7 is vicleograjphed the 'gsrgfiaared the video Cassette pzfoduced the video Casse£;}te__ . He has also produced Ex 1332 ---re<:'é.'§,;'>'i*.. fat received the anount of Rs . 5§T:fi,*'_-» f1;:c;m. 1:1'ie ,;*;t+c>SL..':i.c:e towards videographing cvf it':-::§1!i'i2m!z':t&.i.on fifééeadings. It is clear from the in the e::amiz1ation~in-chief of PW'--- 17 t1;::-it%' he viaieographed the exhxzznation ._proce'e§:1i;.ngs and he has denied the suggestion in '=. "the 'a caress--exam:Lnat:§.<>z: that he has seen A2- .' Cfhandrachari on that day when he pointed out the filace anci fiefore that day he had. not seen A2- Chandxachari. Nothing has been elicited in the \.s.-fix
-43..
cxrczss-exaunination of PW--1?..... f_t'_.¢ evidence that he has videogxapheci pertaining to exhunrzitien "'e:E' v<:3.<-2:':-'.;:.'<:§.'. v.b_,;;q_x;- Laltzshmidsevi at the insténcge ,o£ emugeaee Ho.2 in the presence of Pa~'~'1e"nea--PW 13. It is clear from the s<:;;fujE§;1;y.v'V__Vaij:d""'ai:p§:f;-efiziation of the above eaivji adduced by the pxesecu*E§%Ve:2H' in the present case " zeelégring; fipen the ciz.-cums tantial evid:e:;¢e.'_ tr.->1 {aha guiit of the accused as the:£e--«.Va.:ceV: witnesses to the incident. I_*:.'-3'.,§,:s__ %rell "s:et._t3.ed that when the pmsecution is ' ;2~::~3,y.'§..;3.'<_;;A the circuxnstantial evidence to bring H ._ gziilt of accused, the degree of burden of required to be dischaxged by the V' Aegxoseeutien to prove the guilt of accused. has 'K:JV:>i=.=.-eh laid down by the Honflble Supreme Court .--freported in AIR 1984 SC 1522 in suaaan BIRBHICKAHB SARDA V. STATE OF HTRA, whiah 9':
(mi
-45..
Court in Shivaji Sahgbrao B55335:/"'v.¥".' Stats of Maharashfxa i wh@xéiV,thaii_i observations were made: ' "Certainly, is" V a_ principle that the aiicfiasgd ' be jand not merely lfiefore dd-urt can convict _ distance between Jmay }':e'-..:a:nd_ is 1089' and viague = ':<::<'.§'x'1;'}::'-e%.*."'i:1.11:He:.i-.=. from sure c¢nr::lu$'id::sI',_**V ééféfilished 1-would be ézazgsisfiézifi-»bnlyii-1-ilth the hyyothesis of
--§.-.1;-a ' guilt' '-Jr,-s£_ " accused, that is to say} thevirshafiid not be explainable on _ c>tIiér.,_____h§rpothesis except that the Pa-i;;.21;$e:ér;i is guilty, circmtnstances should be sf 3.
c:c:i12c:lusive nature and tendency, VV{"4:) they should exclude every possible hypothesis except the one ta be proved, and (5) there must be a chain of evicience so complete as not ta leave any kw' .. 45 ,..
reasonable ground for Vthe conéifigiéfi * aonsistent with the inno¢§n¢é}_d£*tthe_tj accused and must shqw tfiat it ali,tumntj~V probability the act_§fi§t fiave be§§u§mn§.5 by the accused." tn 2 Vt 5 t
36. The evidéa§&_a@d3c§d¢%f"the prosecntion in the present case h§s.t§ bétayfitefiiated in the light of 1-,;¢__;f--.-. by the Hcmrfole Supreme dqprt as cuiiéd cat afiove to find out as to w%§tfiéf<thetfiiréufistanflét have been proved by the fiwoaecutiéfigtméhclusively and point out unexx;ng1§=to.thetgfiiit of the accused. It is the t"a_ca$é'9£ the ptésacution and it is clear frum the 'atmatexialtbntrecord ané in View of the evidence of :=w-19', and me-15 that the fact that Lafishfiidéfii was married to accused No.1 an 2*x24;$.1§99 as spoken to by ?W--9 in examination-in- lgfiiéf is not disputed as the said fact hafi not x""been controverted in the crossmexaminatian of ?W--
9. The further facts spoken to by 9W«9 in his \;~,.'-5.
-47..
ea:;a.uu'.nation-:i.n--chief that _(§owran1fiéL4'si'_$térv"' at it accused No.1 was married
-. t .
Lakshxnidevi on the same isi'a.1:fsoV rmit' A._:c1:2,$pu.-teci. The material on record fufthég slibw that after the mxriage; tci the house of the accused to 1.Ve:_«cV?g'i' G<>wra1m1a- sister of agzcii.-st-gfietd tcuse of 9/W-15 and 981-9 staying with his mfltheri' "i>'r::>ther . The evidentze of ?W.;9_, .PW-15 further show that Gowra1ur1a._L',g5,..:;V%ster"'at§éused No. 3. returned to the houaég 'toil? a.::<:Vi1s--':--2;:1,___gz2.d thereafter a panchayath was panchayath, it was decided that tit'?-,'~c*._w's'r-izi-.~_f.-.:Mxr@ stay with 35-9 her husband in his houée. it -its clear from the evidence of PW-9, PW- :'1{J,V_ Pflwii and 1'-'W45, Céowrmurm had not returned to T:."tAh'e..1iouse of PW-9. It is true that FW-9, PW--11 PW--15 the brothers and mother of Laicshntidevi have not supported the case <>f the pxcsecution uh?
-43."
regarding the ill treatment cgixrezz as allegee by the prosecution}, said facts spoken to by' "mi-9}._ .1évc=.n-V114}-;a;d..._VV ;évéi~1S establish that Gowramrna not it with her husband PW-9 and iioueeitv of the accused and tliereaftfilé at '--;ar-as held and despite iii' &::Vi:;1ie;._.__f:'a.ac2xayath that Gowranma ,' 'Gow.ra:r:na had gone to the " 3:522'.-éev No. 1 her brother. To their 'e.'2:te:i2{fV;':V:'V" has proved that the relatiofi 'vbetwe~ee1"..--§?W--9 and sister of accused ._V!~Io.v_i£'§'«:.w:a;_;s' pot A' though the prosecution has 13o§:* .__to prove the ill treatment given to .V'T:=.VV'vI§owever, the material on record
-- wouid show that Lalcshrnidevi.-sister of PW- vV'PW---3.l axzd daughter of PW-15 went: to the '::.§+:.sé of the accused staying with the husband.- ~»zsz<;-icused. No.1 and her father-in-law-acceseci No.2 V to led marital life. The prosecution in order to ''\:~/'' ...5o..
exainatian. we have alre§dg_ held""tt#tVithe'i evideaae af PW-8 regarding iajutiééiffiuhd éfiithe' dead body we I.aksh:nidm§*i..,_. cfiugé feta about the time of death been proved by the pxosétfitiofiitéyégitreasottfiie doubt and nothing has bgg¢:i¢ii§i§§#tf;tF the ¢ross-- examination of §fi=é re%érdifl§'m§fisé of death of Lakshmidefiitfl7tg§T_é§6§%t.ggiétzaéterial on recoxd would i doubt that the deceatéci " j_su£t"e§§t:iV death. The trial Court hatkfilfip hélé that the materil on record .«__wo§1§ v¢leax1y*.Q;¢ve that Lakshmidevi suffered Aii~h¢t¢i§al*{degth. The pxoseaation in order to lhrifig fififia_t§§ guiit af the accuaeé must further pré§e that it was accused Nbs.1 and 2 or any one uHiti=i¢f,ithéfit who caused the murder of Lakshmddevi. 4it'The--t prosecutien is relying upon the i*uwGircumstantial evidenae, a$ there is no eye- i witness ta the incident. FW-1 befere 'Wham the \hi3
-53..
Investigation Officer»-PW '3' a1}c3...the Magistrate-~PW 12 and ;>a.nc.ha--1????' 33 A. the spot in the. land of': se_.Veth:i:;.:a'inhV S'n§_¥t.t3,t.VJVVa:s_.3t1ie,t* place where they had __thh'* of hakshxnidevi. The a yard and on exhumation at found the dead body of exhuxned and thereafteiti on dead. body by the j"h§gis£_ih'th-pw 12. This would c1eh.r:Ly doubt that at the instance = a,c<:__u§a£'1'~..i§1o.1-Chandrachari as per Ex P-_'i.1X.(;af)_iA', Vv t§:"e.,_ _____ __3Z1w*est:igating Officer, Sub .;;}¢i\--j_si..or.al.V_«Magistrate and pazzcha went to a spot iijauofchi seetharatna Shetty and pointed out tho' where the dead body was exhunvad in izlcmg pfasence of Sub Divisional Magistrate. The i' '.r_iVéa.x:if' body of zakshrnidevi was found and the sama * Vida-ographed. The videograph of the said proceeding has also been taken on record and B3'
-54..
produced as per Ex. P31-Video Cassette,__.':"'~2W-Q? has already referred to butheicefoxfe _ the circunxstance that the accused V§I<';.:2._.gave'_'vfze1untae:'y:V"
statexraent and led pcslice '1pan.§g2:a._'ta hifiléfce where the dead body. of was"; found buried is proved 'ckaubt. It is new well deitision of the Supreme Cqurt 3,1; SCW _453.3 in SWAMY MAROHAR MISHRA v.
STATE'. 13:)?" 'fact discevereci' envisaged 'te§c1erV .S_e¢t;§.ez{ 2'? of the Indian Evidence ¢_Act1;8:72 ezni3"re.gesv the place from which the »vgr!a~s"§ifc:§1uced, the knowledge of the accused aHs-- 't.o the information given in that
--V relate distinctly to that effect, " q ,s1::=;h':,_.i:1gV:"'-
"fize condi tian necessary to bring the section into operaticn is that discovery of a fact in consequence cf information xeeeiveci from at persez:
\v$«--}S' _ 55 , accused of any offence:
of a Police Officer A' and therezm-an sq of A this izzfonmation as xelatévzi di;s*t_;'.nc:jt.},y the fact thereby di§ag¢v¢red."
Proved.» = ' "
31. Therefore, above said decision cafg' Hc§n'blé _ ..:«Coz;rt, it is clear that V. fiointing out the place 'whé:-e.:':i:,th$§- bugiéav the dead body of "¢?1i?a;EéA--.t was exhuztned amounts to a confessing; =r;"!.'i.'s-"_._'.:i.A1.~.§::".'t'.«.'§."§' related to the discovery spo]c'énwt_<_>_1>y the witness. It is further 'V"__VCl:Véa'§'V material on record that PW 9-the tiwrttherh' Ltkthnudevi had gone to the house of V _ the Vu"a.<:«:?1:z.s1e;t<":i; on 24.1.2000. The accused were 1?;{~.afi§ntVV"'.. there and then he did not fiad t.1:.:a34:s:~.::§ic1evi, he made enquiry that the whereabouts 4.573 Lakshrnidevi and they would inforzxieci that ' «~"La1-mhxzaicievi had left their house. The said facts l§é:F> ..,56..
spoken to by PW-9 has not been cc-ntrovert_ewde_i'~hy the learned Counsel appearing for the :13' V. the witness was not eubjected--""'v--tq. "=r:::c=ese_-- examination by the learned Ceunsei; fer' the accused and the r;rat_eriel._ "ea wiyeld L, fuxrther show that no wee. by the appellant No.1, who: is of devi to search for his wife A' to make an enq11i;*3f'Vin.Etheii:?hoeee:"cf parents, mother and brother' VV nespectswely and on the same day' and given <:omp1aint--Ex P9. &_ Thetighv _x;?W--9 "hag ____ not supported the case of the ~§9§i*e$ee:;tie~n gtegarding ill treatment given to the accused, the abeve said facts spekegg "his examj,na,tion--in»chie:E has not been Jcontroirerted in the czc-ess--exa:ninatien by the 'éjeuzzeel appearing for the accused and therefore ..._the said eircmnstance of the conduct ef the accused has else been proved by the proseeution KL';
-51..
as per MO-13 seized under Ma_hazer--E_--.i§"P6~;'_':.I§?i:~t1*s.:i.ng has been elicited in the cross--e§xan1iriat3gdi1 6 to disbelieve the FVeu_r;i.deiic:e'V' xegeréfing the seizure of MO.-3-11, 3.2 PW--16 has further deposeci;::'_.;iZV3». theh Hhhere is a. pathway upte a feet from the spot a;1d"E§he V found in the pathway hlroedstains stene was also PW'--16 has further depesetii V .that when accused led. palice _V towards Javagal upto one 1:5 the A'laz;_q1_of Sippegowda situated on the ~s;cfi2the.;*n.A of the road, then accztzsed preciuceci Ha. the said land and from a bush he pre&uce§i "Beadle of spade in the said. land and the séae produced as per Mos-14 and 15 and was 'seized under biahazar Ex P7. Then accused led "'"=...peJ,.:i.ce and panchas to R.!a5.C.'zard (A.P.M.C.) Javagal. The accused gointed amt a. ditch where ._ 52 ..
he haci beret his clothee. He pointed out the harm: pieces of clothes as per: 1405-16 and 3.7 and he seized them under Mahazar-Ex P3. FW---['$'----»jhas clearly corroborated the evidence regarding the seizure under Mahazar--E2E:_."P?"e.ei1ud referred to in the evidencev-:ef~----P«W-Q16ecvthifig has been elicited in the ¢=ess4e;m:aat;¢u«c%to disbelieve the ev1de:;¢§~~_....V gmec i:gs'~:.1;'*'v£u£thex'vw}' deposed"c't1; ej§t reffirfied to Axsikere Rural Police " H accused. He secured panchaye§t}3<ia.reV' ._ 5~--Ha.ridas and CW 22- "fLlV-ffecianmrthy led police and panchas .A ta, 'fiicefis-.4vA.Ba;1kers at Chikkanayakanahalli . PW 4- __ present in the shop and at the izzétance accused, PW-4 produced 1405-4 and 5 the same were seized under Mahazar-ExP 5 and " --..the..aAevidence of PW-3.6 has cleaxiy corroborated by evidence of PW-5.
Rik.-9;
"64- witness clearly corroborates the e#.ga'1a.1i:1a.tion--A or PW«15 regarding seizure made 8 and the same was seized umaler' The Investigation hast' the Chemical Exarninatiegfi st report as per Exs P29 VA were found on the the clothes found on stone, nmd and the 1£'£;t".."is':1;'--v the voluntary staten;ent'-- .. No. 1, the same also recovered' on _the_ the voluntary statement giverjrtvby aooused hIo.1 as per M05-16 and 17. there are no bloodstains on the burnt Ahclo-these; ESL report:-Ex P29 3.11:5 Serology repaxtegx,§3o issued by the Scientific Officer, u"''.__V''E*orensix: 1' Science Laboratory, Bangalore would show x= that the clothes found on the body of Lakshmidevi the bloodstains found on the articles 1, 2, tvs, 4, 5 and 7 and the bloodstained on the stones Ki-:"U>
-65..
6 and '3 wexe stained with hunen .t.'t:.ef blood stains found on articxég 1:' the stones and the bloo£is4ta.i1ié:<;1""-east}; xécévéxée V on the basis of the the aecused on the of {flee same group and this would' that the izzcrizzsinatixgg' ' the accused No. 1 place where the incident"'te§?; «'a""s:e:5;}2.ure of bloodstained stone-V-Hi) " 12 under Mahazar Ex P3 t;?ier;fA._of:'_"_.the decision of the Humble Ciomziye.1reeciy~--..re:Ee;'red to above and pointing out- »t§he__p.1e¢e--.:whexe the incident took place also the &ie'o;_o'e:e'V'.within the meaning of Section 27 of the" »._E§r:Z.~ fiflenoe Act: . Efimther recovery of bloodsteined stones and bloodstained earth from "A.1_tVhe..Aj;>oint on the basis of his voluntary statanent Waire also incrmzinating circmnstances which are proved by the proseczztiozz beyond reasonable doubt Kywk --: 63 :- not been proved. However, the trial C0311; has not "
considered as to whether the above said 0' K circumstances pmved by the the guilt of the accused in the pgoper 0' proceeded mainly on the basis is the motive for coInn1issiofn..V_of o'fii§i1ee0hua\s.._not and the person before oonfession 5 made and the No.1 in the companyiof supported the case of the pmsecufiott "the.§n:ding ofthe trial Court is enetieous'. of the above said i.ncnmm' ' atih?g«--.. proved by the prosecution A"NQ§5__._'l, and 2, it is clear that the against accused No.1 are the fact being the husband of Lakshm1d' cvi, the V make any enquixy in the house of mother of Lakshmidevi and he did not file any complaint though his wife had left the house as 0 by him to PW9 on 24.01.2000 and the that that
0. he was absconding till 02.02.2000 and could he apprehended only on 02.02.2000 and recoveries made on the basis of the voluntary statement of accused No.1 and \9t,?> -:71 :- to prove that accused No.2 has committed the ofiiznce punishable under Section 201 I.P.C., is also liable to be set aside and we hold that accused No.1 is guilty of murdezaef his wife - Iakshmidevi and thereby, committed the puma' hable under Section 302 I.P.C., arm ' and 2 are guilty of having committed the under Section 201 I.P.C., read with However, the judgement of % court acquitting aaccused__ No.2 'c_fi'e11.ee* « under §f;;?.C~_.¥ is' be confirmed and acco1d1n' "we anévéer N9. 1 .
. «V In new' of our finding' on "1-oiizt "Nc§;i1e,§A%%% No.1 has to be scntaenceci for the ofiefices under Sections 302 and 201 I.P.C., No.2 has to be sentenced for the oflenoe under seceon 201 rwd with Section 34 I.P.C.
" oflence of murder under Section 302 I.P.C., is jpunishabae with death or impzisonment for we and wlth' fine. The ofiiznce under Section 201 I.P.C., is punishable K9-43 with imprisonment of either description for a term which may extend to seven years and with fine.
36. We have heard the iearned V' for accused Nos.I and 2 and the' Government Picader appearing for the question of sentence. '
37. Learned counsel ap for }Nos.1 and 2 sub1i.:§ttcd-- No.2 is concerned, he is aged ' hand he was in judicial custody hes tlndcxgone detention for the 01.06.2001 and a lumen' t mew'
-- 'of detehiipn undergone by him. Leamed counsel 0' subméucd that having regard to the facts and of the case, it cannot be said that this 'm one . .« rarest of rape cases to impose sentence of death on accused No.1.
g the accused No.2 to the pexiod
--:73:~
38. On the other hand, learned High Court Government Pleader submitted that maximum punishment may be imposed.
39. We have given amdoiis consideration contentions of the learned counsel appcaxing . accused and the learned High u appearing for the State.
40.' "" and circumstances of the 'tttc' which accused No.1 has committed - Lakshmkicvi and themby, V. ot:'fence___p1mishab1e under Section 302 I.P.C., to the facts and circumstances of the the question of sentcnce, we are of the V not a case which falls Within the ambit of t u x V z*;:are:~:st'_of cases calling for impositkm of extreme penalty .'_j_of sentence and wherefore, interest of justice would T met by sentencing accused No.1 to rigorous A. imprisonment for fife and to pay a fine of Rs. 10,000] ~ and in default of payment of fine, to undergo fu.rt.'ner Iigcrous ifiui
--: 74-:~ imprisonment for a period of one year for the offence punishable under Section 302 I.P.C.
41. Having regard to the sentence prescribed for the oifence punishable under Section 201 E.P.C.,v having regard to the theta and cizeumstances of . and the situation under which the boffen.--::e"' dd committed and the circumstances of the question of sentence and ofddthe tee VA hold that interest of justice woufdu accusedVV1.No.--1' to impxisonment for three years and pay i§s.5,000/- and in default of _ of fine,V"to_.vunde.1."go further rigorous imprisonment V. {($15 the oflenoe punishabic under Section far as accused No.2 is concerned, _accu§cd v§Vto.2':"Was aged 65 years when the charge was o'n¢18.09.2000 and now, he must be aged more years and having regaxd to the fact that he has .:'_4"'ak*eady undergone detention fiom 26.01.2000 to " " 01.06.2001 as he was in custody from the date ofhis attest to the date of judgement passed by the trial Court, We hold that having regard to the age of accused No.2 and the LM --: 75 :- offence of which he is found guilty, interest of justice would be met by sentencing him to the period of detention already undergone and to pay a fine of Rs. 10,000/- and in defniflt of payment of fine, to undergo simple "
year for the ofience punishable under Section T' N Section 34 I.P.C. Accordzh gly, we pass the following Order-
The appcai is allowed "'-r11e.ju:1gg5:;1e.~n; sf acquittal passed by the of idessionsdiludge at Hassézn insgéss:e;11sv.oas§§-.1\;o--.5s/2000 dated 01.06.2001 acqn.itting"aec11sed'V.No.1 offences punishabie under; Sections' 302 CI, is set aside. The judgement of the accused No.2 of haven" g committed under Section 201 I.P.C., is set aside-..__ No.1 is found guilty of having committed ofiences punishable under Secfions 302 and 201 1.9.0., No.2 is found guilty of having committed the punishable under Section 201 read with Secfion 34
4..V'I.P.C. The judgement of acquittal passed by the trial Court acquitting accused No.2 of the offence punishable under Section 302 I.P.C., is confirmed.
km.
~: 76 :-
Accused No.1 -- Vedamurthy @ Chandrachari is sentenced to imprisonment for A "
pay a fine of Rs. 10,000]. (Rupees *1fcnee*:'11ou:§s11§1)j';z;1e'0 default of payment of fine, to :7: imprisonment for one year for tl1e.,:ofi'ence' "pun1shah__ 7 Section 302 I.P.C., and to undergo:A'r:igoI~m1s.tmierisonment for three years and to pay"etfine"*of e (Rupees Five Thousand) and of to undergo fimzher fisorcue for the offence I.P.C. Both the substantive sentence-st fun 3 ijgccusedt M. M. P. Chandrachari, son of late sentenced to the per1od' of imprisonment 5Lw¢ae1y1t'u:%a:1~g0jnetby him fmm 26.01.2000 to 01.05.2001 _ and to of Rs. 10,000/- (Rupees Ten Thousand) W H 'T ctefnixlt of payment of fine, to undergo further simple s.:itn p1*isenment for one year for the ofience punishable under 'jf 201 read with Section 341.20. The trial Court is directed to secure the presence of accused No.1 and remand him to serve out the sentence i\vL._../{L -: 77 :- imposed upon him and to take steps for mcovexy of the fine amount from accused No.2 and in default of paymsnt-pf fine, to implement the order of sentence passed Cf'i§§a5:.;=g M'