Gayithri and Others vs State of Karnataka

Mohan M. Shantana Goudar, J—The judgment and order of conviction dated 16.3.2011 passed by the Fast Track Court, Arkalgud in S.C. No. 136/2009 is called in question in these two appeals.

The appellants/accused Nos. 1 and 2 were tried and convicted for the offence punishable under Section 302 r/w Section 34 of IPC.

Crl. A. No. 914/2011 is filed by accused No. 1 and Crl. A. No. 389/2011 is filed by accused No. 2.

Case of the prosecution in brief is that deceased Rangaswamy is the husband of accused No. 1 Gayithri; accused No. 2 is the paramour of accused No. 1; the deceased and accused No. 1 were running a small provision store in their house situated at Hulikal Siddapur Village, Arkalgud taluk; the deceased used to go for coolie work at 9.00 a.m. and used to come back at 5.00 p.m.; during the aforementioned period, accused No. 1 was looking after the provision store and whereas, deceased was looking after the provision store after coming back from coolie work. The deceased and accused No. 1 had two children viz., Sujith (son) aged about 11 years and Suvarna (daughter) aged about 9 years. During the period of incident the deceased, accused No. 1 and two children were living together in the same house. P.W. 5 being the mother of the deceased though was living separately, was visiting the house of the deceased everyday for watching television; she used to be there in the house of the deceased with all the family members up to 10.00 p.m. and used to go back to her house. P.Ws. 1 and 12 are the brothers of the deceased. They were also having separate houses and they were living with their respective families.

Accused No. 2 though was the son of uncle of accused No. 1, had illicit intimacy with accused No. 1; he used to frequent the house of accused No. 1 and the deceased in the absence of the deceased; at that point of time, the children P.Ws. 6 and 7 of the deceased were sent out of the house by accused Nos. 1 and 2; the rumours of illicit relationship between accused Nos. 1 and 2 spread in the village and ultimately, the deceased came to know of the same; even the mother, brothers and all other family members of the deceased had come to know about such illicit relationship; all of them, including the deceased had warned accused No. 2 as well as accused No. 1. Despite the same, such illicit relationship between accused Nos. 1 and 2 continued.

About a week prior to the incident in question, accused No. 1 had purchased sleeping pills by approaching the Doctor with the pretext that she is not getting adequate sleep; on the night intervening between 14.11.2008 and 15.11.2008, all the family members of accused No. 1, the deceased and the two children had dinner and slept. P.W. 5 - the mother of the deceased who was watching the TV up to 10.00 p.m. also went back to her house; accused No. 2 entered the house of the deceased somewhere during night and he left the house of the deceased at 2.00 a.m. on 15.11.2008; P.W. 8 saw accused No. 2 entering the house and whereas, P.W. 2 saw accused No. 2 going away from the house. On the next day morning, to the surprise of everybody, the dead body of the deceased was found inside his house with injuries on his testicles.

Complaint came to be lodged at 9.15 a.m. on 15.11.2008 by P.W. 1 as per Ex. P1 before Arkalgud police station, which came to be registered in Crime No. 245/2008 for the offence punishable under Section 302 r/w Section 34 of IPC. P.W. 22 completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 22 witnesses and got marked 18 exhibits and 5 material objects. On behalf of the defence one witness is examined and 6 documents were got marked. As aforementioned, the trial Court convicted both the accused for the offence punishable under Section 302 r/w Section 34 of IPC.

Sri. S.K. Venkata Reddy, learned advocate appearing on behalf of accused No. 2 - appellant in Crl. A. No. 389/2011 taking us through the material on record submits that the trial Court is not justified in convicting accused No. 2. Though, P.Ws. 6 and 7 were allegedly sleeping in the house wherein the incident has taken place, they have not seen accused No. 2 coming inside the house and going out of the house during the relevant point of time; the motive as alleged by the prosecution cannot be believed, in as much as, the relationship between accused Nos. 1 and 2 virtually is that of brother and sister; the evidence of P.Ws. 2 and 8 who have deposed about the accused coming inside the house and going out of the house during the relevant night is unbelievable, in as much as, there was no reason as to why they did not disclose about such important fact to anybody including the police; P.Ws. 2 and 8 are none other than the close relatives of the deceased and they were very much present in the house of the deceased talking with all the family members of the deceased and they had even interaction with the police. P.W. 8 is the signatory to the scene of offence panchanama Ex. P2, which was drawn by the police immediately after registering the crime in the morning on 15.11.2008; since P.Ws. 2 and 8 were very much present in the house of the deceased even when the police started investigating into the crime, there is no reason as to why their statements were not recorded on 15.11.2008 itself; on the other hand, the statement of P.Ws. 2 and 8 are recorded with a delay of two days, which has remained unexplained; the evidence of P.Ws. 2 and 8 is contradictory to the evidence of P.Ws. 6 and 7 who had slept in the house along with the deceased and accused No. 1. He further draws the attention of the Court that the so called extra judicial confession made by accused No. 1 does not implicate accused No. 2 at all. But it implicates accused No. 1 only. The complaint Ex. P1 also discloses the said extra judicial confession made by accused No. 1 to the effect that she committed the murder of the deceased since the deceased wanted to commit her murder by squeezing her neck. On these among other grounds, he prayed for acquittal of accused No. 2.

Sri. Lokanath. K., learned advocate appearing on behalf of accused No. 1 submits that accused No. 1 seems to have committed the offence since the deceased wanted to take the life of accused No. 1 and in order to protect herself she must have taken the law into her hands. He prays that accused No. 1 may be convicted for the offence punishable under Section 304(II) of IPC.

Per-contra, learned SPP-2 argues in support of the judgment of the Court below.

Admittedly, the incident has taken place within the house of the deceased wherein the deceased and his wife (accused No. 1) and their two children P.Ws. 6 and 7 were staying. On that night also only four were sleeping in the house. Though P.W. 5, the mother of the deceased had come to the house of the deceased for watching TV, she left the house of the deceased at about 10.00 p.m. Consequently only four persons i.e., deceased, accused No. 1 and two children were sleeping. The post mortem report Ex. P9 and the evidence of the Doctor who conducted post mortem examination viz., P.W. 17 would make it clear that the cause of the death is cardiac arrest due to vagal inhibition secondary to right testicular injury while the victim was asleep or under the influence of benzodiazepine drug. Though the ligature mark is found, the Doctor has opined that the ligature mark appears to be post mortem and the same is superficial without any structural damage to internal structure. The Doctor also opined that there are no prominent signs of asphyxia and there were no signs of any struggle. It is also mentioned in the post mortem report that the multiple abrasions over face and neck predominantly are post-mortem in nature. Thus, the Doctor has opined that the only significant ante mortem injury is scrotal injury with right testicular injury i.e., vagal inhibition secondary to right testicular injury. However, the Doctor after getting the report from the Forensic Science Laboratory has also opined that such injury must have been caused either when the victim was asleep or under the influence of benzodiazepine drug. From the aforementioned it is clear that the only ante mortem injury suffered by the victim is on the testicle, which has resulted in his death.

Ex. P15 is a letter issued by the medical officer of Hulikal Primary Health Centre, Hulikal to the Police Inspector during the course of investigation revealing that accused No. 1 Gayithri had come to the said hospital on 7.11.2008 and she was treated for the decease of sleeplessness. The tablet manasamitravati apart from other drugs were prescribed to accused No. 1. It is also mentioned in Ex. P15 that the person consuming such tablet will get adequate sleep. The contents of Ex. P15 supports the F.S.L. report Ex. P10, which confirms the presence of certain drugs in the viscera of the dead body.

P.W. 1 is the elder brother of the deceased. He lodged the complaint as per Ex. P1. He has deposed about the motive for commission of offence as well as about the extra judicial confession made by accused No. 1 in his presence as well as in the presence of villagers. He is also signatory to the scene of offence panchanama Ex. P2 and seizure mahazar Ex. P3. P.W. 2 is the wife of brother of the deceased. She has also deposed about the motive for commission of offence. She has further testified that she has seen accused No. 2 going out of the house of the deceased from the hind door at about 2.00 a.m. on 15.11.2008. P.W. 3 is a villager. He is the resident of a house opposite to the house of the deceased. He has also deposed about accused No. 2 coming to the house of accused No. 1 frequently and about the advice by deceased to accused No. 2 not to visit his house. P.W. 4 is the father of the deceased. He has also deposed about the motive for the commission of the offence. In the cross-examination, he has admitted that there was a dispute with regard to land between the deceased and Mr. Javaregowda. P.W. 5 is the mother of the deceased. She has also deposed about the affair between accused Nos. 1 and 2. P.W. 6 is the son and P.W. 7 is the daughter of the deceased. Both these witnesses have deposed about the affairs between accused Nos. 1 and 2. Though they were sleeping along with their parents in the house, they did not depose about the presence of accused No. 2 in the house during night. P.W. 8 has deposed that he has seen the accused coming to the house of the deceased from the back door during night intervening between 14.11.2008 and 15.11.2008. He has also deposed that father of accused No. 2 had lodged the criminal case against him and others in the year 2007. P.W. 9 is the close relative of the deceased. He has deposed about the extra judicial confession said to have been made by accused No. 1 to the effect that she squeezed the neck of the deceased. P.W. 10 has also deposed about accused No. 2 visiting the house of accused No. 1 frequently and about the extra judicial confession made by accused No. 1 to the effect that she squeezed the neck of the deceased. P.W. 11 is the witness for inquest panchanama Ex. P6. P.W. 12 is the elder brother of the deceased. He has deposed that accused No. 1 made extra judicial confession to the effect that herself and accused No. 2 jointly committed the murder of the deceased. P.W. 13 is another witness for inquest panchanama Ex. P6. P.Ws. 14 and 15 are the witnesses for inquest panchanama Ex. P6 and also for seizure panchanama Ex. P7. P.W. 16 is the secretary of village panchayath. He has issued the panchayath records relating to the house of the deceased as per Ex. P8. P.W. 17 is the Doctor who conducted post mortem examination. Post mortem report is at Ex. P9. Subsequently, he has given another report as per Ex. P11 and opinion as per Ex. P10. P.W. 18 is the Assistant Engineer. He drew the sketch of scene of offence as per Ex. P12. P.Ws. 19, 20 and 21 are the police constables who participated in the course of investigation at different levels. P.W. 22 is the Inspector of Police. He completed the investigation and laid the charge sheet.

As aforementioned, defence has examined one witness i.e., Mr. Javaregowda D.W. 1 who is none other than the father of accused No. 1. According to him, the dead body of the deceased was lying outside the house when he saw the dead body and that there are litigations between him and the prosecution witnesses.

Though, the incident has taken place inside the house wherein the deceased, accused No. 1 and P.Ws. 6 and 7 were living during the relevant point of time, P.Ws. 6 and 7 have not deposed about the actual incident in question. Therefore, there are no eyewitnesses to the incident in question. Consequently, the case depends upon the circumstantial evidence.

The circumstances relied upon by the prosecution are: i) Motive ii) Accused No. 2 was seen coming inside the house and going out of the house of the deceased by P.Ws. 8 and 2 respectively (iii) Extra judicial confession made by accused No. 1 (iv) Incident has taken place within the house wherein accused No. 1 was admittedly living.

In order to prove the first circumstance i.e., the motive, prosecution has examined P.Ws. 1 to 10. All these witnesses have consistently deposed that accused No. 2 used to visit the house of accused No. 1 in the absence of the deceased. The important witness for proving the illicit relationship between accused Nos. 1 and 2 are the parents of the deceased and children of the deceased apart from brothers of the deceased. P.Ws. 6 and 7 being the children of the deceased, P.Ws. 4 and 5 being the parents of the deceased and P.Ws. 1 and 12 being the brothers of the deceased have unequivocally, without any fear or contradiction, have deposed before the Court about the illicit relationship between accused Nos. 1 and 2. They have further clarified that despite repeated warnings accused Nos. 1 and 2 did not stop their illicit relationship and they did not mend their conduct. We find that the evidence of these witnesses in order to prove illicit relationship between accused Nos. 1 and 2 is consistent with the case of the prosecution and their evidence does not give any room to doubt about the said matter.

Thus, in our considered opinion, the aspect of motive is proved by the prosecution. It is no doubt true that accused No. 2 is the cousin of accused No. 1 i.e., accused No. 2 is none other than the son of father''s brother of accused No. 1. Despite the same, accused Nos. 1 and 2 seems to have chosen to have illicit relationship. Be that as it may. Having regard to the evidence on record, which has remained unimpeached in so far as circumstance of motive is concerned, we find that the trial Court is justified in concluding that the circumstance of motive is proved.

As aforementioned, there are no eyewitnesses to the incident in question. P.W. 8 has deposed that he has seen accused No. 2 entering the house during the night intervening between 14.11.2008 and 15.11.2008. P.W. 2 has deposed that she has seen accused going away from the house of the deceased at about 2.00 a.m. on 15.11.2008. P.W. 2 is none other than the wife of brother of the deceased. P.W. 8 is also a close relative of the deceased. The house of P.W. 8 is situated near the house of the deceased.

Undoubtedly, both these witnesses P.Ws. 2 and 8 had come to the house of deceased in the morning of 15.11.2008 and have seen the dead body. They talked to the family members of the deceased. According to P.W. 8, he was in the thrashing floor during the night of 14.11.2008, which is situated behind the house of the deceased and at that point of time, he saw accused No. 2 entering the house of the deceased whereas, P.W. 2 has deposed that when she went for answering calls of nature, she has seen accused No. 2 going away from the house of the deceased at 2.00 a.m. In the morning of 15.11.2008 itself P.W. 2 had talked with accused No. 1 and in turn accused No. 1 had made extra judicial confession before the villagers including P.W. 2 that she squeezed the neck of the deceased since deceased wanted to squeeze her neck. Despite her presence on the scene of offence on the early hours of 15.11.2008 and despite she interacting with all the family members of the deceased, she did not disclose about the factum of her seeing the deceased going away from the house at 2.00 a.m. on 15.11.2008. Admittedly, the police rushed to the scene after getting the news of the incident and started investigating into the crime. The complaint came to be registered in the police station at 9.15 a.m. on 15.11.2008. The scene of offence panchanama was recorded from 1.45 p.m. to 2.45 p.m. The inquest panchanama was conducted at 10.30 a.m. and it continued up to 1.30 p.m. on 15.11.2008, which means that the investigation has started at 10.30 a.m. itself i.e., immediately after lodging the complaint. In spite of the same, statements of P.Ws. 2 and 8 were not recorded on 15.11.2008 or at the earliest. On the other hand, the police chose to record the statements of P.Ws. 2 and 8 only on 17.11.2008 i.e., after lapse of two days. We hasten to add here itself that we would not have normally taken, the delay of two days in recording the statements of witnesses so seriously, but in the absence of any other material on record against accused No. 2 and as the case of the prosecution mainly depends upon the circumstance of he entering and going away from the scene of offence, the version of P.Ws. 2 and 8 will have to be scrutinized particularly keeping in mind that there were disputes between the family of the deceased and family of accused No. 2 with regard to agricultural land. If really, P.Ws 2 and 8 had seen the accused entering the house and leaving the house after some time during night intervening between 14.11.2008 and 15.11.2008, they would not have kept quiet without informing about the said fact to anybody including the family members of the deceased. P.W. 2 is none other than the brother''s wife of the deceased. There was absolutely no reason for her in not disclosing the same to anybody.

As aforementioned, the complaint came to be lodged at 9.15 a.m. i.e., a written complaint by the brother of the deceased, which means that the complaint is lodged only after talking with the family members of the deceased including Accused No. 1. The complaint specifically mentions about the extra judicial confession made by accused No. 1 that she alone committed the murder. At the time of making extra judicial confession, number of witnesses including P.W. 2 was present. Hence, it is clear that P.W. 2 was very much present even when the complaint was prepared. Despite the same, she did not depose about the accused entering the house or going away from the house of the deceased during night. These facts would make us to suspect the evidence of P.Ws. 2 and 8, particularly keeping in mind the animosity between the family of the deceased and accused No. 2. Moreover, P.Ws. 6 and 7 being the children of the deceased have not deposed about accused No. 2 entering the house or going away from the house during midnight. There is nothing on record to show that they were also forcibly made to consume sleeping pills. Number of houses are admittedly adjoining the house of the deceased. If really, some quarrel has taken place or if really the deceased or accused No. 1 have raised hue and cry in the presence of accused No. 2, the neighbouring witnesses would have overheard the same and would have intervened. In view of the same, the only inference that could be drawn is that the prosecution has not proved beyond reasonable doubt about the circumstance of Accused No. 2 entering the house and going away from the house during relevant point of time.

With regard to extra judicial confession, the prosecution witnesses have consistently deposed that accused No. 1 made extra judicial confession, which implicates accused No. 1 only. Even, the complaint Ex. P. 1 lodged by the brother of the deceased would specify that accused No. 1 made extra judicial confession before all the villagers in the early hours of 15.11.2008 on being asked as to how the death has occurred and it is also borne out from the complaint Ex. P. 1 that accused No. 1 confessed that she squeezed the neck of the deceased since the deceased wanted to take away her life. This version as found in Ex. P. 1 relating to extra judicial confession is spoken to consistently by P.Ws. 1, 2, 7, 9 and 10. All the aforementioned witnesses have cogently and consistently deposed that accused No. 1 confessed before them as well as before the villagers that she committed the murder of the deceased by squeezing the neck of the deceased.

However, P.W. 12 has deposed improving the case of the prosecution to the effect that accused No. 1 confessed before him that herself and accused No. 2 committed the murder of the deceased. This version of P.W. 12 before the court in the cross-examination is a clear improvement. Such improvements are brought to the notice of the said witness i.e., P.W. 12 during the course of cross-examination. Subsequently, the important omission is proved through the investigating officer (P.W. 22). The Investigating officer has admitted that P.W. 12 has not stated before him that accused No. 1 confessed about the role of accused No. 2 also in the commission of the murder. The omission so brought on record is a material omission, which amounts to contradiction and therefore, such material omission needs to be eschewed from consideration. In view of the above, the evidence of P.W. 12 with regard to extra judicial confession made by accused No. 1 for implicating accused No. 2 also cannot be believed. However, all other witnesses mentioned supra have deposed that accused No. 1 confessed before them that she committed the murder of the deceased.

In so far as the last circumstance is concerned, admittedly, the incident has taken place within the house. At that point of time, two children P.Ws. 6 and 7 were aged about 11 years and 9 years respectively. There was no reason for them to commit the murder, on the other hand, they have deposed before the Court that it was accused No. 1 who committed the murder of the deceased. Accused No. 1 herself, as aforementioned, confessed that she committed the murder of the deceased. Though she has tried to explain that the deceased tried to squeeze her neck, the same does not find support from any other material on record. Accused No. 1 has not sustained any injury on her body much less, on her neck. Therefore, in the absence of any material to show that there was threat by the deceased on accused No. 1, that portion of the explanation by accused No. 1 cannot be believed. Be that as it may. Looking to the fact that the prosecution has proved the extra judicial confession made by accused No. 1, it is clear that it was accused No. 1 who committed the murder of the deceased and consequently, it has to be held that the prosecution has not proved beyond reasonable doubt that accused No. 2 was also involved in the crime in question.

There is no reason to accept the submissions made on behalf of accused No. 1 to impose conviction, for the offence punishable under Section 304(II) of IPC. Accused No. 1 has not sustained any injury. The post mortem report as well as the evidence of the doctor would clearly reveal that the deceased was administered benzodiazepine drug (sleeping pill). The incident has taken place while the deceased was under the influence of sleeping pill. Thus, the death of deceased is clearly as a result of pre-planned murder by accused No. 1. Therefore, the trial court is justified in convicting accused No. 1 for the offence punishable under section 302 of IPC. However, for the reasons mentioned supra, the trial court is not justified in convicting accused No. 2 for the offence with which he is charged. Except the circumstance of motive no other circumstance is proved against accused No. 2. Consequently, accused No. 2 is entitled to be acquitted. In view of the same, the following order is made:

(i) Crl. A. No. 914/2011 filed by accused No. 1 namely Smt. Gayithri stands dismissed.

(ii) Crl. A. No. 389/2011 filed by accused No. 2 is allowed. Accused No. 2 namely Sri. S.V. Mohan Kumar @ Mohan is acquitted of all the charges leveled against him. He is set at liberty.

The operative portion of the judgment, in so far as it relates to accused No. 2 is concerned, shall be communicated to the concerned Prison Authorities. He can be set at liberty forthwith, if not required in any other crime.