Karnataka High Court
Mallappa S/O Durgappa vs The State on 20 April, 2022
Author: K. Somashekar
Bench: K. Somashekar
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF APRIL 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
CRIMINAL APPEAL NO.200129/2016
Between:
Mallappa S/o Durgappa,
R/o Gandhinagar, Maski,
Tq : Lingasugur, Dist : Raichur.
(Accused No.1)
... Appellant
(By Sri Ganesh Naik and A.S.Rawoor, Advocates)
And:
The State
through Maski Police Station,
Dist: Raichur,
Now represented by Addl. SPP,
Advocate General Office,
Kalaburagi.
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
2
This Criminal Appeal is filed under Section 374(2) of
the Cr.P.C., praying to set aside the judgment and order of
conviction and sentence dated 02.09.2013 passed by the
II Addl. District and Sessions Judge, Raichur in
S.C.No.59/2012 and acquit the appellant.
This appeal coming on for Dictating judgment this
day, K. Somashekar J., delivered the following:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence dated 02.09.2013 rendered by the court of II Addl. Sessions Judge, Raichur (hereinafter referred to as the 'Trial Court') in Sessions Case No.59/2012 wherein the accused No.1 - Mallappa S/o Durgappa is convicted for the offence punishable under Sections 498A and 302 of Indian Penal Code, 1860 (for brevity hereinafter referred to as 'IPC' for short).
2. In this appeal learned counsel Sri Ganesh Naik, for the appellant/accused No.1 seeks the intervention in the judgment of conviction and order of sentence rendered by the Trial Court and prays to set aside the judgment of conviction and order of sentence against the 3 appellant/accused No.1 and to acquit the appellant/accused No.1 for the aforesaid offences.
3. Heard the learned counsel Sri Ganesh Naik for the appellant/accused No.1 and the learned Additional State Public Prosecutor Sri Prakash Yeli for respondent/State. Perused the materials inclusive of the judgment of conviction and order of sentence rendered by the trial court which is stated supra.
4. The facts of the case in this appeal are as under:-
Accused No.1 who is the appellant herein is the husband of the deceased Marry and she was being ill- treated by this appellant/accused No.1 at the instigation of accused No.2. The accused No.1 and 2 had some homosexual relationships and Mary noticed it. The accused no.1 used to come late at night to his home and at times in her presence, the accused No.1 and 2 used to behave abnormally. Mary the wife of accused No.1 has objected to such behaviour. She also used to insist her husband stay 4 away from accused No.2 namely, Manjunatha S/o Sugurappa.
It is alleged that accused No.1 used to threaten his wife Marry that he would rather leave her, but not leave the company of accused No.2. This fact was brought to the notice of her parents. Therefore, her father namely Muttanna and her mother Elijamma who are cited as CWs.1 and 4 in the charge sheet advised accused No.1 who is their son-in-law. It is alleged that even the neighbours namely Mokshamma, Annapurna, Gouramma, Shanthamma, Kariyamma and Simon also advised both accused No.1 and 2 to leave each other's company. And not to extend ill-treatment to Mary. The accused No.1 conspired with the co-accused No.2 to eliminate his wife i.e., Marry and the accused No.2 also instigated accused No.1 to eliminate his wife so that they can live together with happiness. On 06.11.2011 at around 11.00 p.m., the accused No.1 came to the house and picked up a quarrel with his wife Marry, when she questioned him as to why he 5 came late to the house. Accused no.1 picked up a quarrel with her and the same was heard by the neighbours who are cited as witnesses CWs.5 to 10 who came to the house of Marry and pacified the accused no.1. At around 2.00 a.m. in the night, the accused No.1 allegedly strangulated Marry using a plastic wire and killed her.
In pursuance of the complaint filed by her father PW.5-Muthanna S/o Durgappa, criminal law was set into motion by registering the first information report (FIR) as per Ex.P.18 for the offences reflected therein. After investigation, the charge sheet was filed against the accused. The committal court passed an order to commit the case under Section 209 of the Code of Criminal procedure the case is registered as Sessions Case No.59/2012.
5. The trial court heard the arguments of the learned Public Prosecutor and defence counsel and found the prima facie materials against the accused and framed the charges for the offences punishable under Sections 6 498A, 302 and 109 read with Section 34 of IPC, 1860. The accused did not plead guilty but claimed to be tried.
6. The prosecution examined PWs.1 to 11 and got marked Ex.P.1 to Ex.P.18 and also got marked MO.1- plastic wire. After the closure of their evidence, the accused are examined as contemplated under Section 313 of Cr. P.C. The accused denied all incriminating evidence against them. The accused did not choose to lead any defence/evidence as contemplated under Section 233 of Cr.P.C.
7. Subsequently, the trial court has heard the arguments advanced by the learned Public Prosecutor and the defence counsel for the appellant/accused No.1. On scrutiny of the evidence of PW.5-Muthanna and the evidence of PW.6 Elijamma and also the evidence of PW.7- Kariyamma, PW.8-Shantamma and PW.9-Shanthapap inclusive of the evidence of PW.11 - Udaya Ravi the Investigating Officer and coupled with the documents at Ex.P.8 the complaint, Ex.P.2 is the spot panchanama, 7 Ex.P.3 is the seizure panchanama and Ex.P.4 is the post mortem report of the deceased Marry and FSL report at Ex.P.5 and opinion report given by the expert is at Ex.P.6 and so also the report at Ex.P.17, the trial court arrived at a conclusion that the prosecution has proved the guilt of accused No.1 who is an appellant before this court by facilitating the worthwhile evidence and rendered a conviction judgment for the offence punishable under Section 498A of IPC and sentenced him to suffer rigorous imprisonment for three years with fine of `5,000/- with default clause and similarly the accused no.1 is sentenced to undergo imprisonment for life and sentenced to pay fine of `10,000/- for the offence punishable under Section 302 of IPC.
8. It is contended by the learned counsel for the appellant/accused No.1, Ganesh Naik, by referring to the evidence of PW.1-Somanath who is a panch witness to the inquest and also spot mahazar and seizure of MO.1-plastic wire that Pw1 has not fully supported the case of the 8 prosecution. He has turned hostile regarding the seizure of plastic wire M.O1. PW.2-Mokshamma and PW.3-Annapurna are the relatives of the deceased Marry and their evidence is hearsay. However, they have stated in their evidence in respect of cruelty and harassment meted out to the deceased by her husband, accused No.1. PW.4-Dr.Shankar Pawar conducted post mortem on the dead body and issued the post mortem report and FSL report which are marked at Exs.P.4 to P.7.
9. PW.5-Muthanna who is the father of the deceased has filed a complaint as per Ex.P.8 and PW.6- Elijamma is the mother of the deceased and she has also given evidence. These two witnesses only spelt about how their daughter Mary briefed them relating to some homosexual relationships of accused no. 1 and 2. It is urged that their evidence is contrary to each other.
10. PWs.7, 8 and 9 have stated in their evidence relating to harassment but they are the interested witnesses and their evidence is hearsay. PW.9-Shanthappa 9 who is an Advocate drafted the complaint at Ex.P.8 based upon the narration made by PW.1-Muthanna who is none other than the father of the deceased. PW.9 who is an Advocate has given evidence and supports the case of the prosecution. But PW.10 being an Investigating Officer conducted the mahazar at Exs.P.1 to P.3 and secured all the documents and also recorded the statement of the witnesses and laid the charge sheet against the accused. But the trial court did not appreciate the evidence from a proper perspective and more so there are no eyewitnesses to the incident in respect of the murder of the deceased Mary. That entire case is based upon circumstantial evidence to prove the guilt of the accused. But the chain of circumstances must relate to all circumstantial evidence. But, in the instant case, there is a delay in lodging the FIR and medical evidence is not corroborated with the ocular evidence to prove the guilt of the accused.
11. The PWs.2, 3, 8 and 9 have been subjected to examination on behalf of the prosecution but they are 10 relatives and all also interested witnesses. PWs.5 and 6 being the parents of the deceased Mary and even their evidence if meticulously considered, does not help the conclusion arrived at by the trial court.
12. Insofar as the motive aspects are concerned, the aforesaid witnesses have stated in their evidence that there were homosexual relationships between accused Nos.1 and 2. However, the same is not established is the submission.
13. The evidence of PWs.5 and 6 is contrary to the evidence of PW.4 the Doctor who conducted the autopsy over the dead body and issued the post mortem report. PW.4. the Doctor has admittedly stated in his evidence that if a person is strangulated and thereafter hanged then there will be some ligature marks and one would be ante mortem injury and another is post mortem injury. But in the instant case, the ligature marks are ante-mortem in nature. In the instant case, there are no cut injuries inflicted on the person of the deceased. Therefore, it 11 appears that it is a case of suicide. The trial court even after going through the entire evidence facilitated by the prosecution, has not appreciated the evidence from a proper perspective.
14. The co-accused No.2 was instigated by accused No.1 to eliminate his wife. If she is eliminated way will be clear for accused no. 1 and 2 to indulge in homosexual relationships. But the case against co-accused No.2-Manjunath was ended in the acquittal. Therefore, this appeal requires interference and if not there will be a miscarriage of justice.
15. Apart from above said contentions, counsel for the accused No.1 has made a specific submission that after rendering a conviction judgment against this appellant who is arraigned as accused and he is in judicial custody since the date of his arrest till today. He is in incarceration for almost about 9 years 5 months and more so the accused and the same shall be taken into consideration, apart from the grounds urged in this appeal. If there is no intention 12 and if there is no knowledge to kill Mary taking into consideration the period in which he has undergone imprisonment, the accused can be convicted under S.304 of IPC and the period in which he is under incarceration should be held as sufficient service of sentence. On all these premises, the learned counsel for the appellant seeks intervention in this appeal.
16. On the other hand, learned Additional State Public Prosecutor for the respondent/State who has taken us through the evidence of P.W.5 and P.W.6. P.W.5 Muttanna is the father of the deceased Mary and he has launched the prosecution by filing a complaint as per Ex.P.8 based upon his complaint, criminal law was set into motion by recording FIR as per Ex.P.18. P.W.9 Shanthappa an Advocate has written the complaint and P.W.5 has narrated the incident. Therefore, the evidence of P.W.5 and also the evidence of P.W.6 are sufficient to hold that the prosecution has proved the guilt of the accused and accordingly, the trial Court has considered their 13 evidence and the evidence of P.W.4 Dr Shakar who conducted an autopsy over the dead body and noticed the ligature mark around the neck of the deceased and also given opinion relating to the cause of death of the deceased. P.W.11 being an Investigating Officer has investigated the case thoroughly by conducting spot mahazar as per Ex.P.2 and seizure mahazar as per Ex.P.3 and so also secured FSL report Ex.P.5. These are all the evidence appreciated by the trial Court including the evidence of P.W.7 Kariyamma and P.W.8 Shantamma, the neighbours. They had entered the house of the deceased Mary when there was a quarrel between the appellant and Mary and pacified the incident. They have stated in their evidence that there was some homosexual relationship between accused Nos.1 and 2. The deceased Mary was coming in the way of their relationship. For that reason, accused No.2 Manjunatha who is a friend of accused No.1 instigated accused No.1 to eliminate his wife Mary. Therefore, accused No.1 as per the advice of accused No.2 on a fateful day strangulated her with M.O.1 14 plastic wire. On 06.11.2011 at about 11 p.m., accused No.1 picked up a quarrel with Mary when she questioned him as to why he was late home. For that reason, a quarrel took between accused No.1 and his wife. P.W.1 to P.W.11 have been subjected to examination on the part of the prosecution to prove the guilt of the accused. Therefore, the appeal does not call for any interference. On all these premises, the learned Additional State Public Prosecutor submits that the appeal preferred by the appellant/accused No.1 be dismissed as devoid of merit.
17. The learned counsel for the appellant has placed judgments of the Hon'ble Supreme Court in the cases of K. Ravi Kumar vs the State of Karnataka, reported in (2015) 2 SCC 638 and Kala Singh @ Gurnam Singh vs State of Panjab in Criminal Appeal Nos.1040-1041/2021, wherein the Hon'ble Supreme Court has modified the conviction from Section 302 of IPC to Section 304 read with Section 34 of IPC. These citations are squarely applicable to the present case as the 15 appellant/accused No.1 was convicted by the trial Court for the offences punishable under Sections 498-A and 302 of IPC. But the case against the co-accused namely, Manjunatha ended in acquittal. Due to the instigation made by accused No.2 and also conspiracy hatched by accused Nos.1 and 2, the accused No.1 strangulated his wife Mary and eliminated her. Accused No.1 is none other than the husband of the deceased who had given physical as well mental harassment to her when she objected to homosexual activities between her husband i.e., accused No.1 and accused No.2.
18. It is relevant to refer to Section 299 and the 4th explanation of Section 300 of IPC. These provisions speak about the knowledge of the accused. Both the provisions speak about the knowledge and the bodily injury which is likely to cause death. However, the distinction between both the limbs is the degree of knowledge and the imminent dangerous nature of the act that in all probability cause death or such bodily injury 16 caused by the accused is likely to cause death without any excuse of incurring the risk of causing death or such injury.
19. To bring the act of the accused under the fourth limb of Section 300 IPC, it should be established that the accused is aware of the consequences of his actions and the consequence is either imminently dangerous to life or bodily injury which is likely to cause death. The degree of knowledge makes the difference between the third limb of Section 299 IPC and the fourth limb of Section 300 IPC. Further to bring the action under the fourth limb of Section 300 IPC, it should be proved that it is not the knowledge of mere possibility, but the accused knew that the act is imminently dangerous and that in all probability the act is likely to cause death.
20. If the prosecution brings the act of the accused within the ambit of any one of the four limbs of Section 300 IPC, the act of the accused will be culpable homicide amounting to murder. However, if the act of the accused 17 falls within any one of the five exceptions enumerated under Section 300 IPC, the offence would be culpable homicide not amounting to murder, which is punishable under Section 304 IPC.
21. Section 304 IPC contains two parts which read as follows:
"304. Punishment for culpable homicide not amounting to murder.-Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine if the act by which the death is caused is done to cause death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."18
22. Keeping in view the aforesaid provision and scope of Sections 299 and 300 of IPC, if evidence of P.Ws.4 to 7 are analysed, the learned counsel for the appellant/accused No.1, would submit that both accused No.1 and Mary after their marriage led happy marital life for a certain period. However she has committed suicide because she wanted to marry one Raghavendra who is cited as C.W.12 belonging to the same Christian community and she did not want to marry accused No.1, but her marriage was performed with accused No.1 in a mass marriage conducted by the Ankali Math at Gonal village, which was inter-caste. But after her marriage with accused No.1, she forced the appellant to convert him to Christianity as the deceased belonged to a Catholic Christian community. However, the appellant did not agree to conversion. This contention is also taken by the learned counsel for the appellant for seeking intervention and even on this premise is seeking re-appreciation of the evidence. Though the evidence is appreciated by the trial Court and held that the prosecution has not proved the guilt of the 19 accused no.2 beyond all reasonable doubt, convicted the accused no.1. The inquest was held over the body by the Tahsildar of Lingasugur Taluka, but he is not been examined. Even the prosecution has not ventured to secure the Taluka Executive Magistrate of Lingasugur Taluka to prove the contents of the inquest mahazar as conducted by him. This is a lacuna on the part of the investigation. Even P.W.7 being an independent witness and being neighbour did not support the case of the prosecution and turned around. Even no prior complaint is filed relating to the cruelty and also harassment as extended by the appellant/accused No.1 to his wife Mary. The benefit of acquittal of the accused No.2 is required to be extended to this appellant being arraigned as accused No.1 and on this premise seeking to set aside the conviction held against the accused.
23. In the case of Nataraja vs State by Chelur Police Tumkur District in Criminal Appeal No.281/2015 dated 21.04.2020 the Co-ordinate Bench 20 of this Court has rendered the judgment in modifying trial Court judgment, wherein the trial has convicted the accused for the offences punishable under Sections 498-A and 302 of IPC by considering the evidence of prosecution witnesses. In the instant case, P.W.5 and P.W.6 are the parents of the deceased Marry and P.W.7 is the neighbour and P.W.4 is the doctor who conducted the autopsy. During the investigation, the Investigating Officer secured M.O.1 plastic wire alleged to have been used to strangulate the neck of the deceased by accused No.1. In this context also it is relevant to state that even unimpeachable evidence of P.W.5 and also P.W.6, who are the parents of the deceased and they have naturally stated in their evidence that they have lost their daughter Mary due to harassment given by the accused No.1. P.W.9 is an Advocate who drafted the complaint at Ex.P.8 and this complaint is prepared by him based upon the narration made by P.W.5. But the prosecution has miserably failed to prove the guilt of accused No.2 who is a co-accused, allegedly instigated accused No.1 to eliminate Marry. The 21 analysis of evidence leads to the conclusion that the prosecution even has succeeded in proving the guilt of accused No.1, but the ingredients of an offence under Section 302 of IPC are concerned, there is no such evidence facilitated in securing the conviction. Having gone through the entire evidence of the prosecution adduced so far, the prudent man can conclude that instead of Section 302 of IPC, the prosecution has proved the guilt of the accused under Section 304 Part II of IPC. The accused was apprehended by the investigating agency and thereafter he was in judicial custody till the case against him has been proved and even after proving the guilt against the accused, the accused has been sent to incarceration. He is incarcerated for 8 years 10 months 26 days. The prosecution has miserably failed to prove the guilt against the accused under section 302 of IPC. Thus court can modify the conviction from Section 302 of IPC to 304 Part -I of IPC. 'Culpable homicide is the genus and 'murder' is its species and all 'murders' are 'culpable homicides' but all 'culpable homicides' are not 'murders'. 22 The same is held by the Hon'ble Supreme Court in the case of Rampal Singh vs the State of U.P. reported in AIR (2012) 8 SCC 289. Therefore, keeping in view the evidence facilitated by the prosecution and under the facts and circumstances of the case, we are of the considered opinion that the appellant is guilty of the offence under Section 498-A of IPC. Therefore, the conviction held by the trial Court for the punishable under Section 498-A of IPC is maintained, but the conviction held by the trial Court under Section 302 of IPC requires to be interfered with. Therefore, the accused deserves a conviction for the offence punishable under Section 304 Part-I of IPC instead of Section 302 of IPC as held by the trial Court.
24. As the accused has already been in incarceration for 8 years 10 months 26 days, we prefer to sentence him to undergo S.I. for 8 years 10 months and 26 days. The appellant shall pay the fine amount as ordered by the trial Court. With these observations for the aforesaid reasons, we proceed to pass the following: 23
ORDER The appeal preferred by the appellant/accused No.1 is allowed in part.
The judgment of conviction and order of sentence dated 02.09.2013 in S.C.No.59/2012 passed by the II Additional District and Sessions Court, Raichur for the offence punishable under Section 302 of Indian Penal Code, 1860 is hereby set aside. However, the appellant/accused No.1 is convicted for the offence punishable under Section 304 Part-I of IPC.
The conviction held by the trial Court for the offence punishable under Section 498-A of IPC is hereby maintained.
The accused has already undergone incarceration for 8 years 10 months 26 days. The period of the sentence which is already undergone by the appellant is held as service of sentence for the offence punishable under Section 304 Part-I of IPC. The appellant/accused No.1 shall pay the fine amount as ordered by the trial Court.
Accordingly, ordered.
24
Registry of this Court is directed to send a copy of this order to the concerned Jail Authority where the appellant/accused No.1 is in incarceration for compliance with the order passed by this Court in this matter.
The appellant/accused No.1 shall be set at liberty forthwith if he is not required in any other case.
Bail bonds, if any, executed by the accused shall stand cancelled.
SD/-
JUDGE SD/-
JUDGE sn/RSP