Karnataka High Court
Nagaraj vs The State Of Karnataka on 5 November, 2018
Bench: K.N.Phaneendra, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER 2018
PRESENT
THE HON'BLE MR. JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL No.758/2013(C)
BETWEEN:
NAGARAJ
S/O LATE. BASAPPA @ BASAVARAJAPPA
AGED ABOUT 36 YEARS
OCC: AGRICULTURAL WORK
PERMANENT R/O CHIKKENAHALLI
CHITRADURGA TALUK
AT PRESENT R/O GOKATTE
MARUTHI NAGAR, SANEKERE VILLAGE
CHALLAKERE TALUK
CHITADURGA DISTRICT-577522 ... APPELLANT
(BY SRI. DINESH KUMAR K RAO, ADV. FOR
SRI. RAVINDRA B DESHPANDE, ADV.)
AND
THE STATE OF KARNATAKA
BY CPI, CHALLAKERE CIRCLE
CHITRADURGA DISTRICT-577522 ... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE
CONVICTION AND SENTENCE DATED 31.05.2013
PASSED BY THE ADDL. DIST. & S.J., CHITRADURGA
IN S.C.NO.38/2012 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302
OF IPC & ETC.,
THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, K.N.PHANEENDRA. J,
DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant and the learned Additional State Public Prosecutor appearing for the State. We have carefully evaluated the materials on record.
2. The appellant is aggrieved by the judgment of conviction and order of sentence passed against him vide judgment dated 31.5.2013 by the Addl. District and Sessions Judge, Chitradurga in S.C.No.38/2012 wherein he is sentenced to undergo rigorous imprisonment for life i.e., imprisonment till 3 the end of his life and to pay fine of Rs.1,000/- with default sentence.
3. The brief factual matrix of the case are that:
The deceased by name Sarojamma, daughter of PW-1, Eranna was given in marriage to the appellant/accused long back and both of them were blessed with a child by name Ajay, who was aged about 7 years as on the date of incident.
It is the case of the prosecution that the accused was addicted to alcohol and he was suspecting the loyalty and fidelity of his wife on the ground that she has got some illicit relationship with some other person since four years. Thus, differences between the husband and wife continued.
In this backdrop, it is alleged that on 17.9.2011 at about 11.00 p.m., the accused person started quarrelling with his wife and in fact PWs.2 and 3, who 4 are none other than the sister and sister's husband of the deceased went to resolve the dispute between the accused and his wife. In this context, it is alleged that, the accused took out an axe and assaulted on the right side neck of the deceased which caused severe injury to the major vessels of the neck and caused instantaneous death of the deceased. PW-1 after receiving information from PWs.2 and 3, has lodged FIR on 18.9.2011 at about 5.15 a.m., before Challakere Police Station, Challakere. In turn a crime was registered against the accused in Crime No.257/2011 for the offences punishable under Section 302 of IPC and thereafter investigation was conducted. The police found sufficient materials after investigation and hence submitted the challan to the jurisdictional Court. The accused was also arrested on 18.9.2011 and since then, the accused has been in custody.5
4. The trial court after securing the presence of the accused framed charges against the accused for the offence punishable under Section 302 of IPC and put the accused on trial. The prosecution in order to prove the guilt of the accused, examined as many as 14 witnesses (PWs.1 to 14) and got marked 18 documents as Exs.P-1 to P-18 and material objects MOs.1 to 12 are also got marked. After the completion of the prosecution evidence, the Court also examined the accused under Section 313 of Cr.P.C., and recorded his statement regarding the incriminating materials available against him. The accused though was given an opportunity to enter into defence evidence, but he did not choose to lead any defence evidence. After hearing both the sides, the trial court has arrived at a conclusion that the prosecution has proved the case against the accused beyond reasonable doubt.
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5. Sri. Dinesh Kumar K Rao, learned counsel for the appellant has strenuously argued before this Court that PWs-1 to 3 are material and interested witnesses in this case and they are closely related to the deceased and their evidence has not been meticulously scanned and considered by the trial Court. Though PWs-2 and 3 are the eye-witnesses to the incident, their evidence suffers from serious contradictions and omissions. It is also further contended by the learned counsel that, the deceased was having some illicit intimacy with one Krishna @ Kulda and this was known to the accused also, who inturn informed his father-in-law, PW-1 and further this was known to the entire village and the said Krishna was declaring in the village that he would marry Sarojamma or else he would kill her. In this context, a serious doubt arises with regard to the complicity of the accused in the crime and benefit of 7 doubt has not been properly appreciated by the trial Court. Last but not the least, the learned counsel also submitted that there was quarrel just prior to the incident. Even considering that there was quarrel between the husband and wife, perhaps due to provocation and enragement, the incident might have happened. Therefore, the trial court ought to have considered the said circumstances and ought to have held that it is not the case of murder, but it may fall under the provisions of Section 304 Part I or II of IPC and benefit of doubt ought to had been given by the trial Court.
6. Per contra, the learned Addl. SPP has supported the case of the prosecution and he submitted that, on overall appreciation of the evidence clearly discloses that, the accused had an intention to do away with the life of his wife and strong motive for the same has been established on the basis of defense 8 taken by way of suggestions made during the course of cross-examination, virtually motive has become an admitted fact on the part of the accused.
7. During the course of cross-examination through the witnesses, it has not been elicited that what type of quarrel has been taken place between accused and deceased on that particular day and whether the same was sufficient to provoke or enrage the person to commit such an offence. So far as that aspect is concerned, the accused could not claim any relief under the provisions of Section 304 Part I or II of IPC in the absence any evidence or defence to that effect. It is contended that, the trial court infact has thoroughly considered and appreciated the evidence on record and there is no room for this Court to interfere with such a reasoned judgment of the trial Court.
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8. Having heard the arguments on both sides and after re-evaluating the entire materials on record, the points that would arise for our consideration are:
a) Whether the prosecution has proved the case beyond reasonable doubt that, the accused has intentionally caused the death of his wife on 17.9.2011 at 11.00 p.m.?
b) Whether the punishment imposed by the trial court is proper and correct ?
9. In order to appreciate and also to answer the above said two points, it is just and necessary for this Court to re-evaluate the materials on record.
10. As could be seen from the entire evidence on record it reveals that, PW-1 is the father of the deceased, who received information about the commission of the murder of his daughter by the accused through PWs-2 and PW-3. PW-2 is the sister 10 of the deceased and PW-3 is the husband of PW-2, who are the eyewitnesses to the incident. PW-4 is the spot panch witness to Ex.P-4, spot Mahazar under which the police have seized MOs-1 to 6. PW-5 is also another Panch witness to EX.P-5, which discloses that the police have recovered MOs.8 and 9 at the instance of the accused. PW-6 is a Panch witness to Ex.P-6, wherein the police have recovered M.O-7, axe at the instance of the accused. Exs.P-7 and 8 are the photographs pertaining to the recovery of the incriminating articles at the instance of the accused. PW-7 is the Panch witness to Ex.P-9, who is also the brother of the deceased under which M.Os-10 to 12 were seized which were on the body of the deceased. Though PW-7 is the panch witness, he has stated with regard to the conduct of the deceased as well as the accused. PW-8 is the inquest panch witness and inquest panchanama is marked at Ex.P-10. PW-9 is 11 the doctor who conducted autopsy on the dead body of the deceased and submitted the post mortem report as per Ex.P-11. The seized axe was also sent to the doctor for examination and he gave his examination report as per Ex.P-12. Ex.P-13 was also seen by the doctor, which is the FSL report and on which basis reports were submitted by the doctor. PW-10 is the BESCOM officer who has given a letter regarding existence of electricity at the time of incident as per Ex.P-14. PW-11 is the Computer Operator who gave Ex.P-15 in respect of the land. PW-12 is the Police Constable who carried FIR to the Court and FIR is marked at Ex.P-18. PW-13 is the Circle Inspector of Police, who has done part of investigation. PW-14 is the person who registered FIR given by PW-1 as per Ex.P-1 and dispatched the same to the Court as per Ex.P-18.
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11. On perusal of the above said material evidence, particularly, the evidence of PWs-2 and 3, who are the eye witnesses to the incident, though they are relatives, the court has to very carefully scrutinize their evidence. Merely because of their relationship, their evidence cannot be out rightly rejected. In this background, the evidence of these witnesses have to be appreciated.
12. Both PWs-2 and 3 have categorically stated that their house is situated just behind the house of the accused and they had been witnessing the accused and deceased living together and they have also spoken that the accused and deceased were quarrelling with each other and in fact on the date of incident, they observed some quarrelling taking place in the house of the accused. In order to resolve the dispute between the accused and his wife, as close relatives, naturally they went to the house of the 13 accused and they tried to console the accused and in that context the accused has warned them not to indulge in his family issues and he threatened them. It is also stated by them that the accused quarrelling with his wife took out an axe and assaulted on the right side of the neck of the deceased which caused severe injury and thus two persons were afraid seeing the same and thereafter they went to inform PW-1 in this regard. By the time they came back, the accused had taken away his child along with the axe. These two witnesses have categorically identified the M.O-7, axe which was alleged to have been used by the accused for the commission of the offence.
13. Before adverting to the examination of cross examination of these two witnesses, it is also observed by us that, evidence of these two witnesses is also corroborated by the evidence of PW-1. PW-1 says that the deceased was his daughter and PW-2 is 14 also his daughter. Prior to the incident, he had the knowledge that, the accused was an alcoholic addicted person and he was always quarrelling with his wife. Speaking to the date of the incident, he has stated that, on that particular date, at about 11 or 11.30 p.m. PWs-2 and 3 came to his house and informed him about the incident of, the accused cutting the neck of the deceased with an axe. Immediately, he went to the house of the accused and found the dead body of the deceased and blood stained articles surrounding the dead body. Immediately, in the early morning of the same day, he lodged a complaint with the police as per Ex.P-1. Therefore, the immediate information that has been given has been swiftly acted upon i.e., PW-1 in lodging the complaint. Therefore, the evidence of PWs-2 and 3 are also fully corroborated by the evidence of PW-1.
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14. During the course of cross-examination of these witnesses, of course, no specific defence has been taken. It is suggested that PWs.2 and 3 were not residing in the said village and they were residing at Challakere. The same suggestion was denied. On the other hand, they have reiterated that their house was situated just behind the house of the accused. PWs.1 to 3 have fairly admitted that the brother of PW-2 had taken one Manjamma, a Scheduled Caste girl and committed rape on her. That shows that irrespective of the consequences, they have spoken truth before the Court and they have not suppressed any thing. The allegations made against the brother of PW-2 has been admitted. Therefore, their evidence cannot be easily brushed aside merely because they are relatives.
15. The second important aspect raised was though they were close relatives, they did not make 16 any efforts to rescue the deceased from the hands of the accused for which they had an explanation in the evidence itself. Because they were afraid and accused had threatened and warned them, they did not venture to rescue the deceased. It is quite natural that when the accused was holding an axe and he was furious and about to kill his wife, witnesses might have frightened looking to the said attitude of the accused they might have felt that if they venture to save the life of the deceased, they may land in trouble and the accused may also assault them. In the said set of facts and circumstances of the case, we cannot find any fault with the witnesses that they could not be able to save the life of the deceased, and they acted deliberately for any other reason.
16. The third important defence projected in the cross-examination was that the deceased had developed illicit intimacy with Krishna @ Kulda and 17 that, he was declaring in village that he would like to marry deceased Sarojamma otherwise he would kill her. Except putting suggestion, there is absolutely no evidence led by the accused by way of any defence evidence or elicited during the course of cross- examination with regard to the existence of such relationship between Sarojamma and Krishna. On the other hand, it establishes the existence of motive on the part of the accused because the suggestions made, goes to show that, it was a fertile imagination of the accused about the alleged relationship between Sarojamma and said Krishna. Perhaps this may be a strong reason on the part of the accused to do away with the life of the accused. Therefore, motive factor which has been stated by PW-1 in Ex.P-1 and spoken to by the witnesses PWs.2 and 3 in the evidence that the accused has committed such act suspecting the 18 fidelity and loyalty of his wife, is fully supported in the cross-examination as noted above.
17. The next important aspect argued by the learned counsel is that the son of the accused Master Ajeya, who was aged 7 years and who was present at the time of incident, very conveniently the Investigating Officer has left out the boy from examining and producing the witness before the Court. But, nowhere in the course of cross- examination of PWs.1 to 3 it has been suggested that, the boy was in a sound state to give any statement due to his tender age. On the other hand, during the course of cross examination of the Investigating Officer (PW-13), it is elicited that the said boy was a tender aged and the said Investigating Officer made attempts to examine the said boy because the said boy was frightened and he could not give any statement and therefore, he was not cited as charge 19 sheet witness. If at all the said boy was in a position to speak about anything, as it is stated that the said boy was sailing with the accused as the accused took him along with him, the accused would have ventured upon to examine his son before the Court. Therefore, we do not find any strong reason to brush aside the evidence of PWs-2 and 3, on that ground. Therefore, the evidence of these three witnesses though in the course of cross-examination some dates have not been stated and they have stated the incidents putting the time and date backwards etc. that itself is not sufficient to consider it as major contradictions or omissions to throw out the entire case of prosecution.
18. In this context it is relevant to refer to the decision of the Hon'ble Supreme Court in the case of Bhawada Bhogibhai vs. State of Gujarat (AIR 1983 SC
753). In the said case, the Hon'ble Supreme Court has observed that over importance should not be attached 20 to omissions, contradictions and minor discrepancies which do not go to the root of the matter and shake the basic version of the prosecution and observed interalia, that a witness though wholly truthful is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and out of nervousness witnesses may mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of moment. Therefore, the Court should evaluate the evidence on over all reading of the entire evidence not on the isolated sentences elicited during the course of cross- examination. Therefore, we do not find any such strong reason to reject the evidence of PWs-2 and 3.
20. The other circumstances relied upon by the prosecution is also very interesting and curious. The Police have seized certain articles i.e., MOs.1 to 6 which were stained with blood of the deceased, at the 21 time of spot mahazar, these articles were seized. PW- 4 has in fact supported the case of the prosecution so far as the seizure of these articles are concerned. In the course of cross examination, nothing worth has been elicited from him, to show that this witness was not at all present at the time of drawing up of mahazar Ex.P-4. Though he has stated that he was present at the time of drawing of the mahazar, but in his presence, the contents of the mahazar was not read completely. It is also very peculiarly suggested that he did not observe any weapon on the spot. Rightly, the weapon was not seized on the spot under Mahazar Ex.P-4. Therefore, MOs.1 to 6 which were sent to FSL and FSL report marked at Ex.P-13 clearly discloses that these articles which were found surrounding the dead body of the deceased were stained with 'O' Group blood. But, how it connects the 22 accused, would be discussed little later, while discussing the evidence of other witnesses.
21. PW-5 Jayanna is another panch witness for recovery of a lungi and banian at the instance of the accused in the Police Station. He has supported the case of the prosecution and stated that in his presence, the Police have recovered those articles which were on the body of the accused. In the course of cross examination, except a suggestion that the Police have not done the same, nothing has been elicited. On the other hand, in the course of cross examination, he reiterated that after writing of the panchanama Ex.P-5, he put his signature, but he has not carefully observed any blood stains on the said lungi. However, these articles were sent to FSL and these banian and lungi was specifically marked at item Nos.6 & 7 in the FSL report and the report also says 23 that these articles also found 'O' Group blood which matches with the blood group of the deceased.
22. PW-6 Mahantesh, is another important witness who has deposed before the court that about 1½ years prior to his evidence, the Police brought the accused to the Police Station and accused had given his voluntary statement, stating that, he would show an axe in connection with this case. Thereafter, this witness, PW-7 Manjunatha and PW-12 Veerabhadrappa accompanied the Police along with the accused. The accused took them to the land of one Bangi Hanumanthappa from, near a bush, he took out an axe and handed over the same to CPI and the said axe was stained with blood. The Police had drawn the mahazar and he signed the Mahazar which is marked at Ex.P-6. He has also identified the photographs marked at Exs.P-7 and P-8. In the course of cross examination, again, he strengthened 24 the case of the prosecution by saying actually where the accused and this witness and another witness were sitting in the jeep of the Police and how the accused took the Police to the spot and where exactly the Mahazar was drawn etc., Though there is some discrepancy in the date mentioned in the Mahazar dated 18.7.2011, instead of 18.9.2011, nothing worth has been elicited. That mistake is only appears to be a typographical error crept in because at any stretch of imagination, it cannot be said that the incident has happened on 18.7.2011 because as on that day, the deceased was very much alive and death of deceased occurred on 7.9.2011. Therefore, the said mistake is not a material mistake and it will not in any manner alter or damage the case of the prosecution. Though this witness cannot say at this length of time what type of clothes, the accused was wearing on that particular day etc., but the core of the evidence of 25 this witness is not disturbed even during the course of cross examination. Therefore, the prosecution has successfully established the recovery of MO-7, an axe at the instance of the accused.
23. Ex.P-9 is another important seizure Mahazar wherein the Police have seized the clothes of the deceased marked at MOs.10-12 i.e., Nighty, Blue colour langa and bra which were also stained with blood.
24. PW-7 Manjunatha, brother of the deceased is an attestor to this Mahazar Ex.P-9. He has categorically stated about the seizure of these articles. There is no much dispute so far as this aspect is concerned because the cross examination of this witness was very much concentrated with regard to the conduct of the accused and the conduct of the deceased to the effect that, the deceased had illicit 26 intimacy with some other person in the village and he has denied that the said person by name Krishna @ Kulda was visiting the house of the deceased. Be that as it may, when the recovery of the clothes of the deceased is apparent on the face of the record, Ex.P-9 and these articles were also seized particularly MOs.7, 10, 11 and 12 and MOs.8 & 9 particularly MOs.7 to 9 were recovered at the instance of the accused and MOs.10 to 12 are the clothes of the deceased were all sent to FSL, they were specifically marked as item Nos.3, 4, 6, 7, 8, 9 to 11. It is stated that all those articles were stained with human blood and specifically 'O' Group blood. Accused has no explanation as to how the blood stains of the deceased found on these articles particularly on his clothes and Axe. Therefore, apart from the evidence of PWs.2 & 3 eye witnesses, the recovery and connection of recovery with that of crime has also 27 been beyond reasonable doubt established by the prosecution in order to inculpate the accused.
25. The other witnesses PWs.10 to 14 are formal witnesses particularly PW-13 is the Investigating Officer who has thoroughly investigated the matter and submitted the charge sheet. There is no need to discuss the evidence of these witnesses in detail, as we feel it un-necessary.
26. Looking to the above said facts and circumstances of the case, the evidence of PWs.1 & 3 are very candidly show about the involvement of the accused and his participation and specifically assault by the accused on the neck of the deceased.
27. PW-9 Dr. Jayalakshmi, has categorically stated with regard to the cause of death. The evidence of the doctor also corroborate the evidence of the eyewitnesses. Ex.P-11 is the Post Mortem 28 examination report. After giving details of the injuries sustained by the deceased and after dissection of the body, the doctor was of the opinion that, the death was due to shock and hemorrhage as a result of cut injury to main blood vessels in the neck. But nothing more has been elicited in the cross examination.
28. PW-8 Dayananda, another witness who is the witness to inquest panchanama Ex.P-10, has also stated about the injuries sustained by the deceased. Therefore, looking to the above said facts and circumstances of the case, homicidal death of the deceased is not at all in dispute as the accused himself has suggested that some other person has committed the murder of the deceased. The murder is not in dispute so far as the deceased is concerned, but the defence taken up by the accused is not substantiated by any probabilities either during the course of cross examination or it is elicited by leading 29 any defence evidence. Therefore, under the above said facts and circumstances of the case, we are of the opinion that, the trial Court has not committed any error in holding that, the prosecution has proved the case beyond reasonable doubt so far as the offence punishable u/s.302 of IPC is oncerned. Hence, we answer Point No.1 in the Affirmative.
29. The trial Court has sentenced the accused and imposed punishment to undergo rigorous imprisonment for life. Though there was no need to explain what is meant by 'rigorous imprisonment for life', the trial Court explained that "imprisonment for life means imprisonment till end of his life and that portion of sentence was not warranted and the trial Court would have simply stated that the accused was sentenced to undergo rigorous imprisonment for life. Keeping open the other remedies available to the accused in accordance 30 with law, otherwise it will affect the relief u/s.433 and 433A of Cr.P.C.. Therefore, to that extent, we are of the opinion that the sentence passed by the trial Court requires to be modified. Further, the trial Court has also not given any set off to the period already undergone by the accused during the course of enquiry, investigation and trial for the purpose of computation in order to exercise powers u/s.433 or 433A of Cr.P.C. by the competent authorities. Hence, to that extent, we modify the sentence passed by the trial Court. Hence, we answer Point No.2 accordingly and proceed to pass the following:
ORDER The appeal is partly allowed. The judgment of conviction and sentence dated 31.05.2013 passed by the trial Court in SC No.38/2012 so far as the offence punishable u/s.302 of IPC is concerned, is 31 confirmed. However, the sentence is modified to the effect that, the accused has to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/- with a default sentence of six months. The accused is also entitled for set off u/s.428 of Cr.P.C..
Sd/-
JUDGE Sd/-
JUDGE DM/PL*