Karnataka High Court
Viji @ Vijayalakshmi @ Jyothi vs State Of Karnataka on 13 January, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE M.G. UMA
CRIMINAL APPEAL No.1248/2017
BETWEEN:
VIJI @ VIJAYALAKSHMI @ JYOTHI
AGED ABOUT 27 YEARS,
W/O KEMPEGOWDA,
R/AT KARIHUCHANAKOPPALU,
KOPPA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT,
NOW RESIDING AT:
C/O VIMALAMMA,
3RD CROSS,
SAHUKAR CHANNEGOWDA
BADAVANE,
GUTHALU COLONY,
MANDYA TALUK,
MANDYA DISTRICT.
(NOW IN JUDICIAL CUSTODY)
...APPELLANT
(BY SRI SYED AKBAR PASHA, ADVOCATE)
2
AND:
STATE OF KARNATAKA
BY KOPPA POLICE
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560009.
...RESPONDENT
(BY SRI K. NAGESHWARAPPA, HIGH COURT GOVERNMENT
PLEADER)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED 27.3.2015 PASSED
BY THE P.O., FAST TRACK COURT, MANDYA IN S.C.NO.97/2013 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 302,379,404 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
3
JUDGMENT
This is an unfortunate case where the daughter has murdered her own mother. The present Criminal Appeal is filed by the accused against the judgment of conviction and order of sentence dated 27.03.2015 passed in S.C.No.97/2013 on the file of the Presiding Officer, Fast Track Court, Mandya, sentencing the accused to undergo rigorous imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code and to pay fine of `20,000/-; to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 379 of the Indian penal Code and to pay fine of `10,000/-, in default, to undergo further rigorous imprisonment for a period of six months for the offence punishable under Section 379 of the Indian Penal Code, and to undergo rigorous imprisonment for a period of two years and to pay fine of `10,000/-, in default to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 404 of the Indian Penal Code.
2. The case of the prosecution is that the accused is the daughter of deceased Sakamma and C.W.1. Deceased Sakamma 4 was having Insurance Policy with PACL Company Limited and the accused was the nominee to the said policy, which matured on 03.08.2012 and deceased Sakamma was supposed to receive `10,910/- from the Insurance Company. Accordingly, the Policy was submitted to the Insurance Company and Sakamma had received the amount. On 31.10.2012 at 2.00 pm, when Sakamma was sitting in front of the house of C.W.2, the accused came there and called and forced her to give the insurance amount. When Sakamma refused to give the money, accused picked up quarrel and assaulted on the cheek of Sakamma forcibly, due to which, Sakamma sustained grievous hurt and died at the spot. The accused took all the ornaments worth `22,000/- found on the body of Sakamma and left the place she pledged the said ornaments through C.W.4 and used the said money for her own use and thereby, committed offences punishable under Sections 302, 379, 404 of the Indian Penal Code.
3. After receipt of the Charge Sheet from the Investigating Officer, the Magistrate took cognizance of the offences and registered the criminal case in C.C.No.226/2013. Since the offences 5 were triable by the Court of Sessions, the matter was committed to the Court of Sessions. After committal of the case, the learned Sessions Judge registered Sessions case in S.C.No.97/2013 against the accused. After hearing, the learned Sessions Judge framed the Charge, read over to the accused in the language known to her, who pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution in all examined 10 witnesses as P.Ws.1 to 10, got marked the documents Exs.P.1 to P.32 and the material objects M.Os.1 to 10. After completion of the evidence of prosecution witnesses, statement of the accused as contemplated under Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the incriminating evidence made against her by the prosecution witnesses and filed statement under the provisions of Section 313(5) of the Code of Criminal Procedure and stated that the children of the second wife of her father were not cordial with her as she was made nominee to the insurance policy by her deceased mother. Therefore, they created false evidence and have falsely implicated her in order to deprive her of the policy amount and further stated that her deceased 6 mother had illicit relationship with P.W.2-Manchegowda which she used to oppose. P.W.2 and the deceased were misusing the innocence of her father. Therefore, P.W.1 and P.W.2 filed false complaint.
5. Based on the aforesaid materials, the learned Sessions Judge framed two points for consideration. Considering both oral and documentary evidence on record, the learned Sessions Judge answered both the points in the affirmative holding that the prosecution proved beyond reasonable doubt that the accused who is the daughter of the deceased Sakamma was the nominee to the insurance policy taken by Sakamma and in order to get the maturity amount of the said policy on 31.10.2012, accused came to the house of deceased Sakamma at 2.00 pm, picked up quarrel with her for the said policy amount and when Sakamma refused to pay the policy amount, assaulted Sakamma with her hands on her cheek due to which, Sakamma dashed to the hard surface and sustained grievous injuries and died on the spot and thereby, committed an offence punishable under Section 302 of the Indian Penal Code. The prosecution further proved that after the death of 7 Sakamma, accused removed all the gold ornaments found on the dead body of Sakamma, took them and left the place. She pledged the same and utilized the amount for herself and thereby committed an offences punishable under Sections 379 and 404 of the Indian Penal Code, and accordingly, passed the impugned judgment of conviction and order of sentence. Hence, the present Criminal Appeal is filed by the Appellant/accused.
6. We have heard the learned counsel for the parties.
7. Sri Syed Akbar Pasha, learned counsel for the appellant/ accused contended with vehemence that the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge is without any basis and contrary to the material on record and is liable to be set-aside. He further contended that there is no motive for the alleged offence. The motive is not established by the prosecution. As per Ex.P.23-post mortem report issued by the Doctor, there are no external injuries found on the dead body. The doctor who conducted the post mortem examination has not been examined, but his opinion is marked as Ex.P.22, which is impermissible. M.Os.5 to 10 jewels wore by the deceased were not 8 recovered at the instance of the accused. But the same were seized from the custody of P.W.4 in the police station.
8. He further contended that, absolutely there is no material against the accused to implicate her in the homicidal death of the deceased. The prosecution proceeded to convict the accused mainly on the basis of the evidence of P.W.1- father of the accused. P.W.2 is the neighbour who has seen the dead body for the first time at 8.00 pm on 31.12.2008, whereas, the incident had occurred at 2.00 pm. Absolutely there is no credible evidence. Still the learned Sessions Judge convicted the accused and the same cannot be sustained. He further contended that, except P.Ws.1, 2 and the Investigating Officer, all other witnesses including P.W.4 have turned hostile. Absolutely there is no material to implicate the accused for the offence. He further contended that the prosecution failed to prove the case beyond reasonable doubt. The appellant/accused is in judicial custody for more than ten years. Therefore, learned counsel sought to allow the Criminal Appeal.
9. Per contra, Sri. K.Nageshwarappa, learned High Court Government Pleader while justifying the impugned judgment of 9 conviction and order of sentence passed by the trial Court, contended that the evidence of PWs.1, 2 and the opinion of the Doctor at Ex.P24 clearly depicts the motive for the murder. He further contended that on the date of the unfortunate incident, the accused was with her mother. MOs.5 to 10-jewels worn by the deceased-Sakamma were seized from PW.4 in the police station who is the paramour of the accused. Though PW.4 turned hostile, his evidence can be relied upon for recovery of gold articles-MO-5 to MO-10. He further contended that PW.7-Goldsmith and panch witness to Ex.P19 i.e., Mahazar, supported the case of the prosecution. He would further contend that the accused has taken a specific defence in the statement filed by her under the provisions of Section 313 of Cr.P.C., where she has gone to an extent of making false allegations against her own mother that she had illicit relationship with PW.2. Thereby, the conduct of the accused clearly depicts that she is involved in the homicidal death of the deceased i.e., her own mother. He further contended that it is also not in dispute that the deceased-Sakamma had taken Insurance Policy with PACL Company Limited for Rs.10,910/-, the same was spoken to by PW.5. Thereby, the circumstances narrated by the learned 10 Sessions Judge clearly depicts the involvement of the accused in the homicidal death of the deceased. Therefore, he sought to dismiss the appeal.
10. In view of the rival contentions urged by learned counsel for the parties, the only point that would arise for our consideration in this appeal is:
"Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence for the offences punishable under Sections 302, 379 and 404 of IPC and whether she has made out a case to modify the impugned conviction in the facts and circumstances of the case?"
11. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire materials on record, including the original records carefully.
12. It is undisputed fact that the complaint filed by PW.1 who is the father of the accused and husband of the deceased, clearly depicts that the accused was married to one Kempegowda, who left her within one year from her marriage. In Ex.P1-complaint, PW.1 11 stated that on 31.10.2012 at about 7.00 a.m., when he went out of the house towards Madduru, his wife deceased-Sakamma was all alone in the house. On that day, at about 10.00 a.m., the accused made a call to his mobile and asked him where was he and he informed that he was in Madduru. After finishing the work in Madduru, he went to Mandya and from there he went to his village. When he was on the way back towards his house, the people were talking about his wife's death, which had occurred inside his house. He further stated that at about 10.00 p.m., he went near his house and witnessed public gathering in front of the house. He entered the house and saw the dead body of his wife, which was in supine position towards southern side. After enquiry, it came to his notice that on 31.10.2012 at about 2.00 p.m., his wife was sitting near the house of PW.2 and at that time, the accused came there and took the deceased with her to their house and at about 2.30 p.m., PW.2 came near PW.1's house and saw the accused and deceased talking to each other inside the house. It is further stated that at about 8.00 p.m., as the door of the house of deceased was open and light was on and after hearing the bleat of the goats and shepherds, PW.2 went inside the house and he came to know that 12 the deceased was dead and he informed the same to other neighbors. Further, it is stated that the gold ornaments worn by the deceased and cash of Rs.3,000/- kept in kitchen found missing. After noticing all the above circumstances, PW.1 specifically stated that it was only the accused who caused the death of his wife and requested to take action in accordance with law.
13. Based on the aforesaid complaint-Ex.P1, the jurisdictional police registered the case in Crime No.149/2012 under the provisions of Section 302 of IPC. After investigation, the jurisdictional police filed the charge sheet against the accused.
14. This Court being the Appellate Court, in order to re-appreciate the entire materials on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.
(i) PW.1-Ningaiah-the complainant and husband of the deceased, father of the accused, reiterating the complaint made, has stated about the involvement of the accused in the homicidal death of his wife. He identified the photos of the dead body at Exs.P2 to P14, 13 photo copies of his home and kitchen at Ex.P15 and Ex.P16. He identified the clothes of deceased-Sakamma at MO.1 to MO.3 and MO.5 to MO.10, jewels worn by the deceased.
Nothing has been elicited in the cross- examination to disbelieve his version about the involvement of his daughter in the homicidal death of his wife.
(ii) PW.2-Manchegowda alias Piyanna, who is the neighbor of PW.1, has deposed that on the date of the incident, at about 2.00 p.m., he saw the accused in the house of the deceased and at that time, when he was on the way to his work, the accused was quarreling with the deceased. By seeing that, he stopped himself there, noticing the same, the accused asked him to go away, then he proceeded towards his work. Witness further stated that when he returned to his house at about 7.30 p.m., the door of the house of deceased was opened, light was not on, his wife informed him that in the house of the deceased, shepherds and goats were crying. When he went to the house of the deceased, he saw that the deceased-
Sakamma was lying in the kitchen and came to know that deceased-Sakamma was not alive.
14Thereafter, he called other neighbors to the scene of occurrence. This witness supported the case of the prosecution. Nothing has been elicited in the cross-examination to disbelieve his version about the involvement of accused in the homicidal death of deceased-Sakamma.
(iii) PW.3-Vimala is the owner of the house, wherein, the accused was residing with PW.4- Arunkumar. Witness stated that the accused and PW.4 were residing in her house on a monthly rent of Rs.1,500/- and also paid Rs.5,000/- as advance but did not paid the rents subsequently. Witness further stated that about 4-5 days back, one day in the morning, accused and PW.4 left house and came back at about 7.00 p.m. On enquiry, this witness has not given proper explanation and turned hostile.
(iv) PW.4-Arunkumar alias Kumar was also turned hostile but the prosecution has examined him as witness to establish the recovery of MO.5 to MO.10, the gold article said to be worn by the deceased. This witness has not supported the case of the prosecution.
15
(v) PW.5-Veeranna, the person who has obtained insurance policy bond in the name of deceased-Sakamma has deposed that he was working as an Agent of PACL Company Limited and deceased-Sakamma has taken the policy in the year 2007 and used to pay premium of Rs.1,365/- per annum and the accused was made as nominee to the said policy, which came to be matured on 03.08.2012 and deceased-Sakamma was supposed to receive Rs.10,910/- from the Insurance Company.
Witness further stated that, about two years back, he came to know that deceased-
Sakamma is dead. Witness identified the policy at Exs.P20 and P21. He has not been cross-
examined by the defence counsel and it has been suggested that he has not given any statement before the police.
(vi) PW.6-Puttaswamy, who is the witness to the Inquest Mahazar at Ex.P22, supported the case of the prosecution.
(vii) PW.7-Mariyachar, the Goldsmith who verified/examined MO.5 to MO.10 in the police station, which were seized under Mahazar-
Ex.P19 and has given opinion stating that it is gold ornaments. Witness further stated that 16 the Mahazar is signed by Arunkumar and Gopala as panchas. He supported the case of the prosecution but nothing has been elicited contrary to his evidence.
(viii) PW.8-K.N.Rathnamma, sister of the accused and another daughter of the deceased and PW.1. During her examination in chief, she has stated that the accused is her younger sister and about two years back her mother died.
The prosecution examined this witness as inquest mahazar. But she has not supported the case of the prosecution and turned hostile.
(ix) PW.9-N.Muniyappa, the Police Sub-Inspector registered the case on the basis of complaint lodged by the complainant as per Ex.P1 and marked FIR as Ex.P29. This witness supported the case of the prosecution.
(x) PW.10-Putta Obalareddy.K.O., is the Investigating Officer who conducted further investigation and filed charge sheet against the accused and recorded the statements of the witnesses and drawn the inquest mahazar and also seized the jewels and recorded the statement of the accused. After investigation, 17 filed the charge sheet and supported the case of the prosecution.
Based on the aforesaid materials on record, the learned Sessions Judge proceeded to convict the accused for the offences made out in the charge sheet.
15. The evidences of PW.1-father of the accused and husband of the deceased-Sakamma and PW.2-Neighbor of PW.1, clearly depicts the presence of the accused in the house of the deceased on the date of unfortunate incident and her involvement in the homicidal death of the deceased. It is also not in dispute that as stated by PW.5, the deceased has taken insurance policy and made the accused as nominee to the said policy, which was matured on 03.08.2012 and deceased-Sakamma was supposed to receive Rs.10,910/- from the Insurance Company. According to the prosecution, the accused used to demand the said insurance amount from deceased and on the date of incident, she had quarreled with her mother as spoken by PW.2. Further, when the deceased-Sakamma refused to give the insurance amount to the accused, she picked up quarrel with her and slapped on the cheek 18 of the deceased i.e., her own mother. Thereby, the deceased- Sakamma aged about 60 years fell down and her head was forcibly dashed against the hard surface and sustained grievous injuries and died on the spot. As spoken to by the prosecution witnesses including PW.1, the accused after marrying one Kempegowda, left him within one year from her marriage and started residing with her parents for about 6 months and thereafter she left her parental home and built a relationship with PW.4 and started residing with him. The unfortunate incident occurred on the unfortunate day was only due to quarrel between the accused and deceased for the alleged insurance amount. Thereby, the accused lost control over herself and slapped her mother with her hands, due to which the deceased fell down and her head was forcibly dashed against the hard surface and sustained grievous injuries and died on the spot. This indicates that the death of the deceased was caused without intention and the act of the accused was not due to any premeditation but it happened due to sudden provocation. 19
16. A careful perusal of the facts and circumstances of the case clearly depicts that the case falls under Exception I to Section 300 of the Indian Penal Code, which reads as under:
"Section 300.xxx xxx xxx Exception I: Culpable homicide is not murder if the offender whilst deprived of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
17. A careful perusal of the said provision makes it clear that Culpable homicide is not murder if the offender whilst deprived of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. In the present case, the accused suddenly slapped on the cheek of the deceased, who fell down and her head was forcibly dashed against the hard surface and sustained grievous injuries and died on the spot, is nothing but culpable homicide not amounting to murder. Therefore, the offence clearly false under Section 304 Part I and not under Section 302 of IPC.
20
18. As stated by learned counsel for the appellant/accused, the materials on record and evidence were not considered by the learned Sessions Judge while passing the impugned judgment of conviction and order of sentence. It is also not in dispute that the prosecution failed to prove the charge in respect of the offences punishable under Sections 379 and 404 of IPC except she caused the death in a fit of rage, the prosecution has failed to produce any material document to prove the offences punishable under Sections 379 and 404 of IPC. Thereby, the learned Sessions Judge is not justified in convicting the accused in the absence of any material to prove the said offence made out against the accused in the charge memo. It is unfortunate that the accused being the daughter of the deceased and PW.1, though denied the material incriminating circumstances made out prosecution witnesses in the statement recorded under Section 313 of Cr.P.C. Very strangely, the accused has filed the statement under the provisions of Section 313(5) of Cr.P.C. and taken a defence that her father had two wives and she is the daughter of the second wife-deceased and there was no cordial relationship with the other children of first wife of her father. Thereby, they have falsely implicated her in this case and has also 21 taken a specific defence that her mother had an illicit relationship with PW.2-Manchegowda alias Piyanna, which was known to her and she was opposing the same. She warned both her mother and PW.2. Therefore, PW.2 and PW.1 together filed the false complaint against her, which is one of the circumstance to prove that the accused is involved in the homicidal death of the deceased.
19. Apart from the evidence of PWs.1 and 2, motive for committing murder is for gain i.e., for the insurance amount. The accused had denied all the incriminating circumstances, in toto and has taken a specific defence in the statement recorded under Section 313 of Cr.P.C. Therefore, burden is on the accused to discharge the burden. When the prosecution discharged initial burden, the burden shifts on the accused and the accused has taken the plea of alibi. Thereby, the accused has to discharged the same in the view of the provisions of Section 103 of the Evidence Act. The same has not been proved by adducing evidence independently or stepping into box. Thereby adverse inference has to be drawn against the accused. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of State of Haryana vs. 22 Sher Singh and others reported in AIR 1981 SC 1021, wherein, at paragraph-4, it is held as under:
"4. When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides:
"103. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
20. The accused has not offered any explanation for the death of the deceased and circumstances regarding how she died. In the absence of any explanation offered by the accused, adverse inference has to be drawn against the accused under the provisions of Section 144 Ill. (g) of the Evidence Act as held by the Hon'ble Supreme Court in the case of Prahlad vs. State of Rajasthan reported in (2019) 14 SCC 438 at Paragraph-11 it has held as under:
"11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the 23 chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused".
21. As already held above that the accused quarreled with her mother-deceased seeking the insurance amount, when the deceased refused to give the said amount to the accused, she assaulted/slapped on the cheek of the deceased. Thereby, the deceased fell down and her head was forcibly dashed against the hard surface and sustained grievous injuries and died on the spot. Thereby, the act of the accused was not due to any premeditation, but it happened due to sudden provocation. Thereby, the present case clearly falls under Exception I to Section 300 of IPC and attracts punishment under Part I of Section 304 and not under Section 302 of IPC as stated supra. Without considering the said aspect, the learned Sessions Judge proceeded to convict the accused under Section 302 of IPC.
22. It is also not in dispute that as per Ex.P23-the post mortem report, no external injuries were found on the dead body of the deceased. The Doctor who conducted the post mortem examination 24 was not examined, but marked his opinion at Exs.P23 and P24 with the consent of the counsel for the accused. Therefore, it is a fit case to modify the impugned judgment of conviction and order of sentence under the provisions of Section 302 of IPC into the provisions of Section 304 Part I of IPC.
23. For the reasons stated above, the point raised for consideration in the present Criminal Appeal has to be answered partly in the affirmative, holding that the accused has made out a case to interfere and modify the impugned judgment of conviction and reduce the sentence.
24. In view of the above, we pass the following:
ORDER
(i) The Criminal Appeal is allowed in part.
(ii) The impugned judgment of conviction and order of sentence passed by the trial Court sentencing the appellant-accused to undergo imprisonment for life and to pay fine of Rs.20,000/- for the offence punishable under Section 302 of the Indian Penal Code is hereby modified.25
(iii) The appellant is convicted under the provisions of Section 304 Part I of the Indian Penal Code and accused is sentenced to undergo imprisonment for ten years with fine of Rs.40,000/- (Rupees Forty Thousand only), in default to undergo imprisonment for further period of one year.
(iv) The punishment imposed on the accused under the provisions of Sections 379 and 404 of IPC are hereby set aside. The accused is acquitted from the said offences.
(v) The accused is entitled to the benefit of set-off under the provisions of Section 428 of the Code of Criminal Procedure, for the period already undergone by her.
(vi) Out of fine imposed, the amount of Rs.35,000/-
shall be paid to the husband of the deceased-
PW.1 as compensation under the provisions of Section 357(3) of the Code of Criminal Procedure. The remaining amount of Rs.5,000/- shall be paid to the State for the defraying charges.
26Since the main appeal is disposed of on merits, I.A.No.2/2017 for suspension of sentence and bail is disposed off.
Sd/-
JUDGE Sd/-
JUDGE KCM/SMJ