Karnataka High Court
Ningappa Mallappa Pujeri vs The State Of Karnataka on 14 February, 2017
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2017
PRESENT
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HONOURABLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL No.2761/2013
Between:
Ningappa Mallappa Pujeri,
Age: 25 Years, Occupation: Coolie,
Resident of Gadhinglaj, District: Kolhapur. ... Appellant
(By Smt.Deepa Dandavate, Advocate)
And:
The State of Karnataka,
Represented by State Public Prosecutor,
Circuit Bench, Dharwad. ... Respondent
(By Shri.V.M.Banakar, Additional State Public Prosecutor)
This criminal appeal is filed under Section 374 (2) of the Code
of Criminal Procedure seeking to set aside the judgment and order
passed by the Fast Track & Additional Sessions Judge, Hukkeri,
sitting at Gokak, in Sessions Case No.421/2010 dated 11.08.2011,
where in the above named appellant has been sentenced to undergo
imprisonment for life & imposed fine of Rs.10,000/- & in default to
undergo rigorous imprisonment for three years for the offences
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punishable under Sections 302 of the Indian Penal Code and
appellant be acquitted.
This appeal coming on for hearing, this day, Anand Byrareddy
J., delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor appearing for the State.
2. The appellant is in appeal questioning the judgment and conviction sentencing him to life imprisonment for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity) and imposing a fine of Rs.10,000/-.
3. The brief facts of the case are that, the complainant's daughter Renuka was said to have been married to the appellant about two years prior to the complaint. After marriage, the appellant and Renuka were residing in Nuli village of the appellant. Six months prior to the complaint, the appellant and Renuka had left Nuli village and started residing at Betageri village along with the complainant and his family. One month prior to the complaint, as Renuka and the :3: appellant were not able to get along with the family members of the complainant, they had set up a separate house by renting a house from one Mudadappa Chandaragi. It was alleged that the appellant was an alcoholic and was also in the habit of committing theft. He had recently been arrested for the theft of a bicycle and had been released on bail. He had not engaged himself in any gainful employment and apart from drinking alcohol, he was loitering around and on account of this conduct and behaviour, the complainant and other elders had advised him to mend his ways. This had angered the appellant and he had, therefore, vented his anger on his wife by ill-treating her both mentally and physically. During the night of 26.08.2010 and 27.08.2010, it is stated that the appellant and Renuka were last seen together and in the morning of 27.08.2010, it was discovered that Renuka had been strangulated with her own saree and the appellant was found absconding. On the basis of the complaint, proceedings having been initiated against the appellant in Crime No.130/2010 by the jurisdictional police, the appellant is said to have been arrested on 07.09.2010 at Ghataprabha Railway Station and thereafter, on the appellant's direction they had :4: visited Halkarni Veershaiva Co-operative Bank and had recovered a tali and gold beads which had been pledged with the bank by appellant and apparently belonging to the deceased. It is on this and other incriminating material that the appellant was charge sheeted and he had stood trial. 19 witnesses had been examined by the prosecution apart from marking several exhibits and material objects.
4. On the analysis of the evidence, the trial court has found that the charges were established by the prosecution and has accordingly convicted the appellant and sentenced him to life imprisonment as already stated. It is that, which is under challenge in the present appeal.
5. Smt.Deepa Dandavate, the learned counsel for the appellant would contend that firstly, there are no direct eye-witnesses to the alleged incident. It is on the surmises and the self-serving allegations of the prosecution witnesses that it is sought to be made out that appellant was the assailant, on the basis of a so-called last seen theory which by itself would not establish that the appellant had :5: committed the murder. On the other hand, there was serious doubt as to the cause of death.
6. It is pointed out by the learned counsel, that the trial Court also has addressed the debate as regards the marks that would be left behind in the case of persons who die by hanging and marks that would be left behind, if a person is strangulated and that according to Modi's Medical Jurisprudence and Toxicology, in any case of strangulation, there may be bleeding from the nose and the ear and in the present case on hand, there was no such bleeding to be found. Therefore, it is in serious doubt that whether the deceased had hung herself or had been strangulated. In the absence of categorical evidence in this regard, the benefit of doubt ought to have been given to the appellant.
7. It is also pointed out that there is inordinate delay in lodging the complaint. The complaint is lodged at 12 noon. Though PW.3 is said to have discovered the dead body and had informed the complainant early in the morning and according to PW.1, the inordinate delay is sought to be explained by stating that it is after :6: much discussion with the elders in the village that a complaint was ultimately lodged. Therefore, it is contended that on the suspicion and without any basis, the appellant is sought to be accused of murder on the complainant having been persuaded to implicate the accused even though there is serious doubt about his presence and the manner in which the death has occurred.
8. It is further pointed out that the Court below has mechanically accepted the testimony of PW.2, who was the brother of the deceased and was not even a resident of the same village and the evidence of the said witness has been accepted as if, he had first hand knowledge of the ill-treatment alleged to have been meted out to the deceased by the appellant and the evidence of PWs-4, 6, 7 and 8 has been also accepted, though it was not in dispute that they were all blood relatives of the complainant and were keen on supporting the complaint and seeking to advance the case foisted against the accused only because the complainant believed that the appellant had committed the murder.
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9. It is further contended that the Court below has relied upon the evidence of PWs-3, 4 and 7 to arrive at a finding that these witnesses had seen the appellant together with the deceased on the previous night. Apart from their self serving testimony as to the appellant having been seen with deceased on the previous night, there is no independent evidence of the presence of the appellant with the deceased and therefore, that piece of evidence alone was not sufficient to establish the background, namely, that there was discord between the appellant and the deceased over a period of time and that he was seen in the house along with the deceased on the previous night and therefore, it could be safely presumed that he had committed the murder of the deceased. This, the learned counsel would submit would run against the first principles of Criminal Jurisprudence and cannot take on the character of unimpeachable evidence of the appellant having committed the murder.
10. The learned counsel places reliance on the following authority to contend that the presence of the accused ought to have been proved beyond doubt and places reliance on a judgment of the Madhya Pradesh High Court in the case of SHAMBHUDAYAL :8: AND ANOTHER VS. STATE OF MADHYA PRADESH (2015 Criminal Law Journal 1578), wherein on the facts of that case, the Madhya Pradesh High Court has opined that merely because the body of the deceased in that case was found in the house of the accused, that by itself would not be proof of the accused having committed the murder and therefore, has upheld the acquittal of the accused therein and therefore, seeks that the appeal be allowed and the judgment be set aside and the accused be acquitted.
11. On the other hand, the learned Additional State Public Prosecutor would point out that there is no warrant for interference with the judgment of the trial Court as the circumstances have been demonstrated to support the findings of the trial Court and that the death having occurred within two years from the date of marriage of the deceased, would take on a seriousness which the law considers as suspicious circumstance, ipso facto, that the death has occurred within two years from the date of marriage.
12. In the case on hand, there is material evidence on record to indicate that the appellant and the deceased were not living in harmony and they had migrated from the village of the accused and :9: had tried to live along with the complainant and his family on account of the insecure life which the appellant was offering the deceased. He was given to drinking and had committed petty theft, which had resulted in criminal proceedings pending against him and he was not holding any steady job. This certainly resulted in much acrimony and suffering for the deceased over a period of time and the appellant was not also able to live along with the complainant and his family and therefore, had set up a rented house where only the appellant and his wife, the deceased were residing together.
13. As found by the trial Court, PW-1 had tendered evidence that on the fateful day, when the dead body of the deceased was discovered, his daughter PW-3 had gone to the house of the accused at 7.30 a.m. and had found the dead body of the deceased and that the appellant was not at home. It is on such intimation and since the house of the complainant was a mere 100 feet away from the house of the appellant, he had been there and found that the deceased was lying with a saree around her neck and was obviously strangulated. : 10 :
14. PW-3, in turn has tendered evidence about the ill-treatment given to her sister by the accused and about his drinking habits as well as his lack of employment and further she has also stated that she had visited her sister at 9.00 p.m. the previous night and had seen both the appellant and the deceased together in their house and she has spoken about the earlier incidents, where the appellant had briefly lived along with them and then had started living in a rented house. It is pointed out that PW-3 was cross-examined at length but, no damage was done to her testimony as to her evidence that the appellant was last seen together with the deceased and that he was given to ill-treating and harassing the deceased.
15. PW-4 has tendered his evidence to state that he was a neighbourer and living about three houses away from the appellant and he has also testified that he had visited the house of the deceased after hearing about her death and had seen her dead body. But, he has admitted in his cross-examination that he was related to the complainant.
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16. PW-7, has also tendered evidence that on 26.08.2010 at about 10.00 p.m., the appellant and the deceased were in the house and on the next day morning, he had learnt about the death of the deceased.
17. PW-5, who had made a statement that he had seen the appellant at 3.00 a.m. on 27.08.2010 has, however, turned hostile and not supported the case of the prosecution.
18. Notwithstanding this, the trial Court has found that PWs-3, 4 and 7 have adequately established the fact that the appellant and the deceased were last seen together at home and therefore, it was incumbent on the appellant to establish his subsequent absence from the house and the manner in which the deceased had died. Further, the recovery of the Tali from the bank where it had been pledged at the instance of the accused is the other incriminating circumstance, which the trial Court has taken into account in holding that there were sufficient circumstances to establish the guilt of the accused.
19. It is pointed out by the learned Additional State Public Prosecutor that though the learned counsel for the appellant has made an attempt to state that the appellant was not financially well : 12 : off and it was quite possible that he had pledged the Tali and gold beads at an earlier point of time with the bank. The fact remains that it was pledged with the bank immediately after the incident and this would bear out the fact that the appellant had deliberately committed the murder of his wife and had tried to encash even on the Tali worn by his wife and therefore, the gruesomeness of the incident is evident and hence, the Court below having convicted and sentenced the appellant to life imprisonment is in order and seeks that the appeal be dismissed.
20. On a close consideration of the record and the rival contentions, the factum of the deceased having died an unnatural death is not in dispute. That she had died within two years from the date of her marriage is also not in dispute. The fact that the appellant and the deceased were living an uneasy matrimonial life is also evident from the fact that they were not able to live in the village of the accused-appellant and had needed the support of the complainant and had therefore moved in along with complainant and his family and since the appellant was not able to live in harmony with the complainant's family, finally they had set up a rented home, where : 13 : they were residing together and the circumstance that he was involved in petty criminal cases and was given to a drinking habit is also supported by the evidence of several witnesses. The circumstance as to the presence of the appellant on the date previous to the discovery of the dead body of the deceased is established by the evidence of PWs-1, 3, 4 and 7 and therefore, it was incumbent on the appellant to have explained the circumstances under which his wife had died. The weak attempt to demonstrate that the death might be on account of hanging is dispelled by the medical evidence which would clearly indicate that the death was on account of strangulation as there is difference in the ligature mark and the manner in which the fractures occurred in the neck region, is also distinct and different whether it is in the case of hanging or when it is death by strangulation. The symptoms as found by the Medical Practitioner, in the case on hand, is clearly one of strangulation and there is no escape from the fact that it was the appellant alone who could have committed the murder for otherwise he was not in a position to explain his presence on the previous night and his absence immediately on the next day. Therefore, the evidence on record is : 14 : sufficiently adequate for the trial Court to have come to the conclusion of guilt of the accused.
21. In so far as the decision that is relied upon by the learned counsel for the appellant to contend that merely because the dead body was found in the house of the accused, the commission of murder by the accused also would not be presumed is a finding arrived at. That case cannot be equated to the present case on hand. The circumstances have been sufficiently demonstrated to lead to a presumption that it is the appellant alone who has committed the murder of the deceased. Consequently, we find no merit in this appeal and the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Jm/-