Karnataka High Court
Hanumanthappa vs The State Of Karnataka on 5 July, 2018
Author: S Sunil Dutt Yadav
Bench: S Sunil Dutt Yadav
CRL.A.NO.1188/2013
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY 2018
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
CRIMINAL APPEAL NO.1188/2013
BETWEEN:
HANUMANTHAPPA
S/O LATE NARASAPPA
AGED ABOUT 61 YEARS
R/O DOMMATAGIRI GRAMA
PAVAGADA TALUK
TUMKUR. ...APPELLANT
(BY SRI KRISHNAJI RAO S.J., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY PAVAGADA POLICE STATION
REP. BY THE LEARNED STATE
PUBLIC PROSECUTOR ... RESPONDENT
(SRI CHETAN DESAI, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER
DATED 22.10.2012 PASSED BY THE P.O., FTC-V,
MADHUGIRI IN S.C.NO.163/12 CONVICTING THE
CRL.A.NO.1188/2013
2
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 AND
201 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED
TO UNDERGO LIFE IMPRISONMENT AND PAY A FINE OF
RS.10,000/-, IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO R.I. FOR 2 YEARS FOR THE OFFENCE P/U/S 302
OF IPC AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 17.05.2018 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal of the accused arises out of the judgment and order of conviction and sentence dated 22.10.2012 passed by the Fast Track Court-V, Madhugiri, in S.C.No.163/2012. By the impugned judgment and order, the Trial Court has convicted the appellant/accused for the offences punishable under Sections 302 and 201 of IPC and sentenced him to imprisonment for life and fine of Rs.10,000/- for the offence punishable under Section 302 of IPC and imprisonment of two years and fine of Rs.2,000/- for the offence under Section 201 of IPC. CRL.A.NO.1188/2013 3
2. The appellant was tried in the said case on the basis of the charge sheet filed by Pavagada Police in Crime No.9/2012 of the said Police Station against him. Crime No.9/2012 was registered on the basis of the complaint/Ex.P1 filed by PW-1/Narasimha Murthy, son of the accused himself.
3. For the purpose of convenience, the appellant would be referred to hereafter with his rank before the trial court.
4. The case of the prosecution in brief is as follows:
PW-1, PW-8/Anithamma and one Sanjeevamma are the children of accused and victim Gangamma. PW-7 Narayanamma is the wife of PW-1. Accused and deceased were living with PW-1 and PW-7. The accused was a vagabond and addicted to alcohol. He used to harass his wife Gangamma physically and mentally, if she did not heed to his demand for money for his habit. On 16.1.2012, the accused and deceased left the house of PW-1 to collect firewood from the forest area. That day at CRL.A.NO.1188/2013 4 8.30 p.m., accused alone returned home. On enquiring about Gangamma not returning home, accused did not reveal anything; PW-1 along with his friends PWs-3 and 4 and others searched for Gangamma whole night without any fruits. Next morning, when they persistently enquired the accused, he revealed that on 16.1.2012 at 2.30 p.m., when they were collecting firewood near Doddahalla of Dommatthamari village, quarrel took place between the couple and when Gangamma abused him in foul language, he got enraged and assaulted her with wooden piece of jaali tree and caused her death. He further revealed that he concealed the dead body in the nearby elephant grass.
Then he led PW-1 and others to the place where the dead body was concealed and on that basis, dead body of the deceased was recovered. PW-1 leaving his friends PW-3, PW-4 and CW-3 to guard the dead body and the accused, went to Pavagada Police Station and filed a complaint/Ex.P1. On that basis, PW-12 registered the FIR/Ex.P16 and handed over the investigation to PW-10/C.P.I. of Pavagada Police Circle. He conducted the CRL.A.NO.1188/2013 5 spot mahazar and inquest mahazar. On the basis of the voluntary statement of the accused, he recovered piece of bloodstained saree of the deceased under mahazar Ex.P8 in the presence of PW-5 and other mahazar witnesses, recorded the statements of the witnesses, received the Postmortem report and FSL report and has filed the charge sheet.
5. On committal of the matter, the Trial Court on hearing framed charges for the offences punishable under Sections 302 and 201 of IPC, recorded plea of accused. Since he denied charges, trial was conducted.
6. To substantiate its case, the prosecution examined PWs-1 to 12 and got marked Exs.P1 to P16 and M.Os.1 to 12. The accused was examined with reference to the incriminating material. He did not adduce any evidence. The Trial Court after hearing both sides, by the impugned judgment held that the charges are proved by the evidence adduced by the prosecution and convicted and sentenced him as aforesaid.
CRL.A.NO.1188/20136
7. Sri.Krishnaji Rao S.J., learned Counsel for the appellant seeks to assail the impugned judgment and order on the following grounds:
(1) There is delay in filing the complaint; (2) There are contradictions in the evidence of the witnesses regarding motive and alleged extra-judicial confession;
(3) Due to property dispute, PW-1 has falsely implicated the accused;
(4) The Investigating Officer has not examined any independent witnesses or neighbours to prove the charges;
(5) The conduct of the accused in not trying to escape from the scene of occurrence from the time of he showing the dead body till PW-1 returning to the scene of occurrence with the Police tilts in his favour. If he was guilty, he could have escaped from the place; and CRL.A.NO.1188/2013 7 (6) The injury found in the medical report does not correspond to the weapon/M.O.9.
8. Per contra, Sri.Chetan Desai, learned High Court Government Pleader seeks to support the impugned judgment and order on the following grounds:
(1) All the witnesses are natural
witnesses;
(2) PW-1 and PW-8 being the children of the accused, there is no reason to falsely implicate the accused, who is their father;
(3) The accused being the husband does not explain the unnatural death of his wife; he does not file any complaint about his wife missing from the house;
(4) Merely because the witnesses are relatives of the deceased, they cannot be branded as interested witnesses; and CRL.A.NO.1188/2013 8 (5) The evidence of the witnesses is cogent and consistent to point the guilt of the accused.
9. Having regard to the rival contentions, the points that arise for consideration are:
(1) Whether the prosecution has proved the charges brought against the accused beyond reasonable doubt?
(2) Whether there are any grounds warranting interference of this Court in the impugned judgment and order of conviction and sentence?
10. There are no direct witnesses to the incident. The case of the prosecution is based on the circumstantial evidence. The said circumstances are:
(1) Motive that accused was harassing the victim for money for his habits;
(2) Accused and deceased were last seen together by PW-7 and then she went missing;CRL.A.NO.1188/2013
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(3) The extra-judicial confession made by the accused before PWs-1, 3 and 4;
(4) The dead body was recovered at the instance of accused on the basis of his extra-judicial confession;
(5) The medical evidence that death is homicidal; & (6) The recovery of M.Os.7 to 9 viz., piece of bloodstained saree of the deceased, piece of lungi of the accused and weapon of offence.
Regarding motive:
11. It is the case of the prosecution that the accused was a vagabond without any family responsibility. It is further case of the prosecution that accused was addicted to alcohol and was pestering the deceased to part with money for the same and whenever she was denying to give money, he used to quarrel with her and assault her. On the day of incident also in the similar way, he quarreled with the deceased and assaulted her.
CRL.A.NO.1188/201310
12. To prove the circumstance, the prosecution relies upon the evidence of PW-1/son, PW-8/daughter, PW-7/daughter-in-law of the accused and deceased and PW-5/Gangadhar, the relative of the accused himself. PW-1 in the complaint itself has stated that the accused used to quarrel with Gangamma in family matters and assault her. Due to that, about two months prior to the incident, she had gone to her parental house in Madakashira and he only pacified her and brought her back. PWs-1 and 8 speak in tune with the complaint averments made in Ex.P1. Accused does not dispute that himself and his wife were residing with PWs-1 and 7 in their house. Therefore, PWs-1 and 7 witnessing the quarrel between the accused and the deceased is quite natural.
13. PW-1 states that since his childhood, he had witnessed the accused quarreling with deceased and assaulting her. PW-5 also speaks to the same effect. CRL.A.NO.1188/2013 11
14. PW-8/daughter in her evidence states that accused used to harass and assault her mother, if she fails to give him money for consuming alcohol and therefore, the deceased used to go to her parental house. She further states that many a times her mother used to come to her house as well as her elder sister's house and reveals the atrocity of the accused. She also states that one week prior to the incident, her mother had come to the parental house since accused had assaulted her. She denies the suggestion that accused had performed marriages of his children.
15. In the cross-examination of the aforesaid witnesses, nothing worth is elicited to show that they have any enmity against the accused and therefore, the motive circumstance is proved.
Reg: last seen together:
16. As already pointed out, accused did not dispute that himself and deceased were residing with PWs-1 and 7. PW-1 states that on the date of the incident, he left for CRL.A.NO.1188/2013 12 work and when he came back, his parents were not in the house and his wife/PW-7 told him that both of them have gone for collecting firewood and have not returned. He further states that at 8.30 p.m., accused alone returned home.
17. PW-7 states that at 2.30 p.m. on the same day, accused and deceased left the house together and at 8.30 p.m., accused alone returned home. Therefore, PW-7 is sole eye-witness for the last seen circumstance. In the cross-examination, the only suggestion to the said witnesses is that they had not gone together, Gangamma alone had gone to collect the firewood and while collecting the firewood, she had a fall due to slip and died accidentally. If that is the case, then the accused has to explain where he was on that day. The house of PW-7 was the ordinary residence of PWs-1, 7, accused and the deceased. Further, if his wife died accidentally, what would be his response for that? He himself does not go in search of the wife, does not file any report before the Police about the accidental death of his wife. Even in his statement CRL.A.NO.1188/2013 13 recorded under Section 313 of Cr.P.C., he does not explain how his wife was found dead at the scene of occurrence. Under the circumstances, the Trial Court was fully justified in holding that last seen together circumstance is proved.
Reg: extra-judicial confession and recovery of dead body:
18. Since evidence on these two circumstances overlap on each other, both circumstances are discussed together.
19. It is the case of the prosecution that when Gangamma did not return home in the night and on accused alone returning home and not explaining about Gangamma's absence, PW-1 along with his friends searched for her during night, but could not find her.
20. It is further case of the prosecution that on the next day when PW-1 persistently enquired the accused, he confessed about he committing murder of Gangamma and concealing the dead body in the elephant grass; then he led PWs-1, 3 and 4 to the scene of occurrence and showed CRL.A.NO.1188/2013 14 the place where the dead body was concealed. PWs-3 and 4/friends of PW-1, who accompanied PW-1 along with the accused to the said spot, and PW-7, the wife of PW-1, speak to these facts.
21. The accused does not dispute the location where the dead body was found. As far as the spot mahazar/Ex.P2 and inquest mahazar/Ex.P4, in both these documents, place of tracing the dead body is described as "in the midst of Elephant grass" in Doddahalla by the side of land of one Ravindra Reddy of Dommatthamari village. Thus, it is clear that the dead body was traced at a place other than the ordinary living place of the deceased and PWs-1, 2, 4 and 7. The accused has no other theory of tracing the dead body by his family members and himself.
22. PWs-1 and 7 have stated that on persistently enquiring the accused, he confessed to the crime and volunteered to show the dead body and accordingly, the dead body was traced. Nothing worth is elicited in the cross-examination of the aforesaid witnesses to disbelieve CRL.A.NO.1188/2013 15 their evidence or to believe that they falsely implicated the accused in the case. It is also to be noted that, soon after sighting the dead body, complaint/Ex.P1 is filed and in Ex.P1, the extra-judicial confession statement of the accused is mentioned. Therefore, there is no reason to disbelieve the evidence regarding extra-judicial confession and recovery of dead body on such confession.
23. So far as the contention of the learned Counsel for the appellant regarding delay in filing the complaint, it is to be noted that, the scene of occurrence situates 25 kilometers away from the Police Station. The village of PW-1 also situates in the same vicinity. In the cross- examination of PW-1, it is not disputed that he had gone to the work on that day to Pavagada and returned at 8.30 p.m. His statement that the accused also returned home at 8.30 p.m. is not disputed. When a family member goes missing, naturally first other members try to search for him or her. Exactly that is what the complainant has done in the present case.
CRL.A.NO.1188/201316
24. The next day itself, the accused has revealed about his involvement in the crime and taken PWs-1, 3 and 4 to the spot. On finding the dead body, PW-1 has left his friends PWs-3 and 4 and CW-3 to guard the dead body and the accused and has gone to Police Station and reported the matter. Therefore, the time taken in filing complaint does not in any way make the case of the prosecution doubtful.
Reg: Medical evidence:
25. To prove that the death of Gangamma is homicidal one, prosecution relies upon the evidence of Doctor/PW-11 and Postmortem report/Ex.P13. PW-11 in his evidence states that, he conducted the Postmortem examination on the dead body of Gangamma on 17.1.2012 from 3.00 p.m. to 5.00 p.m. He states that, on examining internal and external injuries on the dead body, he has recorded the same in Postmortem report/Ex.P13. He further deposes that, death is due to internal hemorrhage due to the fractures and head injury, on examining the CRL.A.NO.1188/2013 17 weapon involved, he gave opinion as per Ex.P14 to the effect that assault on the victim by such weapon could cause her death. The only suggestion to this witness is that such injuries could be caused if the victim falls on thorny bushes. He denies the said suggestion. The postmortem report reveals the following external and internal injuries:
Injuries:
1) Fracture upper 1/3rd tibia.
2) Cut injury which are brown coloured. Left lateral
angle of eyes.
3) Abrasion which is dark brown coloured which are 6 in
numbers with various size in left neck.
4) One abrasion on the manubrium sternum.
5) Fracture upper 1/3rd of humerus.
6) Fracture left clavicle.
7) Fracture left ribs.
8) Two cut injuries on vertex 3 x 2 cm each.
9) Blood stain in left ear.
II. Cranium and Spinal Canal
Skull & Vertebrae : Intact. Fracture left and right
temporal bones. Fracture
parietal bone.
Membranes Intact. Ruptured meninges
CRL.A.NO.1188/2013
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through left and right
temporal bone fracture.
Brain & Spinal Cord : Intact. Injured at left and
right temporal brain.
III. Thorax
Walls, Ribs & Cartilages : Intact. Fracture left 2nd,
3rd,4th, 5th, 6th , 7th ribs.
Pleurae : Intact.
26. In the cross-examination of PW-11, the above said external and internal injuries are not disputed. It is hard to believe that a person suffers those many injuries by such simple fall as alleged by accused. Moreover, PW-
11 had denied the theory of accidental injuries. Added to that, if it was accidental injury, accused should have tried to trace her and reported the matter to the Police. Therefore, the fact of death being homicidal is proved.
Reg: Recovery of M.Os.7 to 9:
27. According to the prosecution, on the basis of the voluntary statement of the accused, the weapon of offence and bloodstained piece of saree of the victim were CRL.A.NO.1188/2013 19 recovered at his instance under mahazar Ex.P8. To prove Ex.P8, prosecution relies upon the evidence of PW-
5/Gangadhar and Investigating Officer/PW-10. PW-5 supports the proceedings under mahazar/Ex.P8.
28. It was argued that though PW-1 is also a signatory to Ex.P8, he does not speak to the recovery, therefore, the recovery should be disbelieved. The fact of the prosecution not eliciting the proceedings under Ex.P8 through PW-1 itself does not nullify the whole proceedings. Ex.P8 is attested by PW-5. He speaks to those proceedings. PW-5 is none else but the relative of the accused himself. No enmity is imputed to him to falsely implicate the accused. Therefore, the Trial Court was justified in believing the said circumstance.
29. The circumstantial evidence of motive, last seen together, extra-judicial confession of the accused and recovery of dead body at the instance of the accused on the basis of such extra-judicial confession and the medical evidence corroborate each other and point to the CRL.A.NO.1188/2013 20 hypothesis of the guilt of the accused and accused alone and to no other hypothesis. Therefore, even assuming for arguments sake that the evidence with regard to the recovery of MOs.7 to 9 has some lapses that does not vitiate the order of conviction and sentence passed by the Trial Court. There are no grounds to interfere with the judgment and order of conviction and sentence passed by the Trial Court.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KNM/-