B. Nagaraja vs The State of Karnataka

Mohan M. Shantana Goudar, J—The Judgment & Order of conviction and sentence dated 3.12.2010/6.12.2010 passed by the Presiding Officer, Fast Track Court, Bhadravathi in S.C. No. 131/2009 is called in question in this appeal by the convicted accused.

The accused was tried and convicted for the offences under Sections 302, 307 and 506 of IPC.

Case of the prosecution in brief is that accused Nagaraja is the husband of Rashmi (PW. 3) D/o Vasanthamma; Rashmi was brought up by her foster mother - Hemavathi; the marriage between the accused and Rashmi was performed in the month of December-2006 at Bhadravathi; the parents place of Rashmi is Bhadravathi, whereas the accused is from Sagar; the husband and wife lead married life happily at Sagar for about two months and subsequently quarrel started between them inasmuch as the accused started suspecting the character of Rashmi; accused was abusing and ill-treating Rashmi by employing various modes; ultimately, being frustrated, Rashmi started living in the house of her foster mother - Hemavathi situated at Kuvempunagar, Dairy Circle, Bhadravathi; accused also came to Bhadravathi and lived in the house of Hemavathi for certain period; at that point of time, a petty shop for vending Gobimanchuri was started by the accused and Rashmi; even in those days, the accused started suspecting the chastity of Rashmi when she spoke with the customers in Gobimanchuri shop; subsequently the accused went away to his house at Sagar; there were exchange of notices between the accused and Rashmi; the notices were also exchanged through their advocates for the purpose of divorce of marriage; maintenance petition was filed by Rashmi against her husband (accused); in the notice dated 4.5.2009, accused has alleged that Rashmi has illicit relationship with one person residing at Kuvempunagar; and Hemavathi (foster mother of Rashmi) was supporting for the same; of late, i.e., 2 months prior to the incident in question, PW. 2 - Justin who was working at Kamath Hotel, Bhadravathi developed friendship with Rashmi; subsequently, Justin (PW. 2) started residing in the house of Hemavathi; Rashmi and Justin (PW. 2) had love affair between them and they intended to marry; Rashmi had informed Justin (PW. 2) that her first marriage with the accused has dissolved already by virtue of the divorce.

At about 10.30 a.m. on 24.6.2009 while Justin and Hemavathi were in the house alongwith Rashmi, the accused came inside the house and told Rashmi to accompany him to his place; for the said proposal, Rashmi did not agree; consequently, the accused started dragging Rashmi by holding her hands; Rashmi resisted the said act of the accused; being enraged, the accused assaulted on the head of Rashmi with hammer, which he had brought from his place in a bag; after sustaining grievous injuries on the head and other parts of the body, Rashmi fell down on the ground; Hemavathi, who was cooking in the kitchen rushed to the spot; when she tried to intervene, she was also assaulted on her head and consequently, Hemavathi also fell down on the ground and breathed her last; immediately, Rashmi was taken to hospital for treatment; Rashmi was unconscious for about three days and consequently, her statement came to be recorded after three days in the hospital.

Complaint came to be lodged by Justin (PW. 2) at about 1.30 p.m. as per Ex. P2 which came to be registered by Police Sub-Inspector of New Town Police Station, Bhadravathi in Crime No. 96/2009 for the offences under Sections 302, 307 and 506 of IPC. PW. 27, the Investigating Officer has completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 27 witnesses and got marked 32 Exhibits and 10 Material Objects. On behalf of the defence, 4 Exhibits were got marked. As aforementioned, the trial Court convicted the accused for all the offences with which he is charged.

Sri Dayalu, learned advocate appearing on behalf of the appellant taking us through the material on record, submits that the trial Court is not justified in relying upon the evidence of PWs. 2 and 3; The evidence of PWs. 2 and 3 contradicts with the earlier versions recorded by the Police during the course of investigation; the omissions are proved by the defence; if the improvements found in the evidence of PWs. 2 and 3 are eschewed from consideration, then the accused would be entitled for acquittal. He further submits that the facts and circumstances prima-facie reveal that it was Justin (PW. 2) who committed the offence inasmuch as he wanted to do away with the life of Hemavathi as she was not in favour of his love affair with PW. 3. According to the learned counsel, there is no intention on the part of the accused to commit the murder of Hemavathi; the assault on Hemavathi fell on her head by chance and therefore the accused, at the most can be convicted for the offence under Section 304 Part II of IPC. He further submits that the reasons assigned and the conclusion arrived at by the trial Court are not just and proper.

Per contra, Sri Keshavamurthy, learned SPP-II argued in support of the judgment of the Court below contending that the evidence of PWs. 2 and 3 is sufficient to bring home guilt against the accused.

PW. 1 is the witness for inquest mahazar - Ex. P1.

PWs. 2 and 3 are the eye witnesses. PW. 2 has lodged the complaint as per Ex. P2 while the injured Rashmi was taking treatment in the hospital. PW. 3 is the injured eye witness.

PW. 4 is mother of the injured Rashmi. PW. 9 is grandmother of Rashmi. Both these witnesses have deposed about the motive for commission of the offence. They have deposed about the strained relationship between the accused and PW. 2.

PWs. 5, 6, 7, 8 and 14 have turned hostile to the case of the prosecution. Their evidence is not of any use either to the prosecution or to the defence.

PW. 10 is the doctor. He conducted post-mortem examination over the dead body. Post-mortem report is at Ex. P7.

PW. 11 is another doctor. He treated the injured Rashmi and issued the wound certificate as per Ex. P10.

PW. 12 is one more doctor who examined the accused and issued the wound certificate as per Ex. P12.

PWs. 13, 20 and 24 are the advocates who have sent notices and reply notices on behalf of the accused - Nagaraja and PW. 3 - Rashmi, which lead to the matrimonial discord between them.

PW. 15 is a witness for scene of offence panchanama Ex. P3 under which MOs. 6, 7 and 8 were seized.

PW. 16 is a mahazar witness for Ex. P17 under which shirt of the accused was seized in the Police Station.

PW. 17 is a witness for recovery panchanama Ex. P18 under which MO. 1 - Hammer was recovered.

PWs. 18, 19, 21, 22 and 23 are the Police Constables who participated during the course of investigation at different levels.

PW. 25 is the Sub-Inspector of Police. He received the complaint lodged by PW. 1 and registered the crime based on it. He conducted part of the investigation.

PWs. 26 and 27 are other Investigating Officers. Of them, PW. 27 laid the charge sheet.

From the aforementioned discussion, it is clear that the case of the prosecution mainly rests on the ocular testimony of PWs. 2 and 3.

PW. 2 has lodged the complaint as per Ex. P2. In the complaint itself, the complainant (PW. 2) has clarified that since one week prior to the incident, he was residing in the house of Rashmi (PW. 3) alongwith Hemavathi (foster mother of Rashmi) and Sunitha (aunt of Rashmi). The complaint reveals that at about 10.30 a.m. on 24.6.2009, accused came inside the house and started dragging PW. 3 by telling her to follow him to his place; However PW. 3 did not agree for the same and she tried to avoid his company; the accused assaulted on the head, face and limbs of PW. 3 by telling that she should die; at that point of time, Hemavathi intervened and she was also assaulted mercilessly by the accused; consequently both Hemavathi and Rashmi collapsed on the ground; Hemavathi lost her life. The very version is found in the evidence of PW. 2. PW. 2 has reiterated before the Court as to how the incident has taken place. Even in the evidence before the Court, he has deposed that himself, deceased Hemavathi, Rashmi and Sunitha (aunt of Rashmi) were in the house at 10.30 a.m. on 24.6.2009 and at that time, the accused entered the house and started assaulting Rashmi; when Hemavathi intervened, she was also assaulted with the hammer by the accused. In the cross-examination, PW. 2 has deposed that he was not in love with Rashmi, but he was only a friend of her; since Hemavathi was looking after him as her son, he was residing in her house. However it is admitted by him that no one in the house had objected for his living in the house alongwith Rashmi and Hemavathi. Though PW. 2 subjected to cross-examination at length, nothing worth is elicited by the defence so as to discard his evidence. The evidence of PW. 2 fully supports the case of the prosecution as found in the complaint Ex. P2.

Case of the prosecution is further fortified by the evidence of PW. 3, the injured eye witness. PW. 3 is the wife of the accused. There is no reason as to why she should depose falsely if accused has not really assaulted her and her foster mother. The entire incident has occurred in front of her house. She has specifically deposed in the evidence that the accused came to her house alongwith the bag in which he has hidden a hammer; the accused started dragging her (Rashmi) by holding her hands to accompany him to his place; however, she (Rashmi) did not agree for the same; being enraged, the accused took out hammer from the bag and assaulted on her head; Hemavathi came from kitchen and intervened and she was also assaulted by the accused mercilessly on the head and other parts of the body. PW. 3 has identified Hammer - MO. 1 which was used for commission of the offence. Through her, Ex. D1 and Ex. D1(a) came to be marked. Ex. D1 discloses that few days prior to the incident in question, Justin (PW. 2) started residing in the house of Rashmi. It is also stated in Ex. D1 that Justin (PW. 2) was loving Rashmi and that they wanted to marry after two years. Ex. D1(a) discloses that the accused somehow came to know that PW. 3 was closely moving with Justin (PW. 2) and she was living with him in the same house. Except the aforementioned contradictions, nothing worth is elicited by the defence. However it is further deposed by PW. 3 that the accused was unnecessarily suspecting her fidelity; accused used to suspect her whenever she used to speak with the customers in the Gobimanchuri shop.

On going through the evidence of PWs. 2 and 3 meticulously, we are of the considered opinion that the evidence of these two witnesses is consistent, cogent and reliable. We do not find any ground to suspect their presence on the spot. It is not in dispute that Justin (PW. 2) was residing in the house of PW. 3 at least since one week prior to the incident in question. It is for that reason, the accused was enraged against PW. 3. Since PW. 3 herself is severely injured, her presence on the spot is proved beyond reasonable doubt. Absolutely no explanation is forthcoming on the side of the accused as to why he came to the spot with the hammer and assaulted PW. 3 and Hemavathi. Be that as it may, in view of the unclinching evidence which has remained practically uncontroverted, in our considered opinion, the trial Court is justified in believing the versions of these witnesses for coming to the conclusion.

The ocular testimony of PWs. 2 and 3 is supported by the medical evidence. The wound certificate - Ex. P10 relating to PW. 3 clearly reveals the nature of injuries sustained by the victim. The wound certificate - Ex. P10 discloses that PW. 3 has sustained six injuries, out of them four injuries are grievous in nature; she has sustained linear fracture of left parietal bone extending into the occipital bone; she has suffered comminuted fracture of left mandibular ramus and has sustained fracture of 3rd metacarpal bone with displaced fragments. The opinion rendered by the doctor vide Ex. P8 and Ex. P9 reveals that the injuries sustained by Rashmi (PW. 3) and the deceased Hemavathi could be caused by using hammer. The postmortem report - Ex. P7 further makes it clear that the deceased has suffered seven injuries and all of them were on the head; the deceased has suffered compound fracture of skull, fracture of occipital bone, fracture of left parietal bone etc. The doctor is of the opinion that the death is due to coma as a result of injury to the brain.

In view of the above, it is clear that the ocular testimony of PWs. 2 and 3 is fully supported by the medical evidence.

The blood stained articles including blood stained clothes of the deceased and the injured apart from the accused as well as the blood stained hammer were sent to Forensic Science Laboratory examination. The Scientific Officer of the FSL laboratory has given the report as per Ex. P28. Item No. 15 in the FSL report is hammer; item No. 13 is shirt of the accused seized during the course of investigation and item Nos. 6 to 11 are the clothes of the deceased and injured; item No. 12 is the jacket and item No. 14 is the bag in which the hammer was hidden. The FSL report discloses that almost all the items except item No. 14 were stained with human blood. The serology report further makes it clear that they were stained with ''O'' group of blood. These facts also support the case of the prosecution that the hammer - MO. 1 is used for commission of the offence.

We do not find any ground to agree with the submissions made by the learned advocate for the defence that there was no intention on the part of the accused to commit the murder of the deceased Hemavathi. According to the defence advocate, at the most, it can be said that accused has intended to do away the life of either Rashmi (PW. 3) or Justin (PW. 2) and not Hemavathi. Hemavathi is merely an intruder and she has lost her life and according to the learned advocate for the defence, accused cannot be convicted for the offence under Section 302 of IPC. The said submissions find answer in Section 301 of IPC. It is clear from the said provision that if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause. It is by now well settled that the accused is punishable for murder under the doctrine of transfer of malice under Section 301 of IPC when he aimed at one person, but killed another person. In view of the same, the accused is liable to be convicted for the offence under Section 302 of IPC. Accordingly, no interference is called for.

Appeal fails and the same stands dismissed.