Jabeenabanu vs The State of Karnataka

Mohan M. Shantana Goudar, J—The judgment and order of conviction dated 21.6.2008, passed by the Additional Sessions Court, Shimoga in S.C. 220/2007 is called in question in this appeal by the convicted accused.

Case of the prosecution in brief is that the accused-appellant herein is the wife of the deceased; their marriage was performed nine years prior to the incident in question; a child was born out of the said wedlock, but the said child did not survive for more than 23 days; thereafter no child is born to them; since the accused did not beget the child, the deceased was telling the accused that he would marry his maternal uncle''s daughter by name Mubhina; such behavior of the deceased continued and repeated quite often; there used to be frequent quarrels between the couple on the said ground; on the night of 13.5.2007, accused and the deceased took meal and slept in the kitchen of the house; P.W. 10, the father of the deceased slept outside the house on a katta; the mother of the deceased had been to her relative''s house situated at different village; at about 7.00 a.m. on 14.5.2007, the accused went out of the house wearing burka; at that point of time, since P.W. 2 raised alarm, P.Ws. 1 and 2 apprehended the accused and she was not allowed to go further.

First information came to be lodged by P.W. 1 as per Ex. P1 at about 9.00 a.m. on 14.5.2007 before the Rural Police Station, Bhadravathi, which came to be registered in Crime No. 92/2007 by the Sub-Inspector of Police (P.W. 17), attached to the said Police Station for the offence punishable under Section 302 of IPC; P.W. 15, the Investigating Officer completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all has examined 17 witnesses and got marked 23 Exhibits and 13 Material Objects. On behalf of the defence, no document is marked and no witness is examined. The trial Court on evaluation of the material on record, convicted the accused for the offence punishable under Section 302 of IPC.

Sri Vishwanath Poojary, learned advocate appearing on behalf of the accused-appellant herein taking us through the entire material on record submits that the Court below is not justified in convicting the accused for the offence punishable under Section 302 of IPC; the accused ought to have been acquitted in view of the fact that P.Ws. 10, 8 and 3 have deposed that the accused and the deceased were living happily and there were no quarrels between them. He further submits that at the most the accused is liable to be convicted for the offence punishable under Section 304 Part-II of IPC, inasmuch as no valid explanation is forthcoming from her.

Per contra, Sri Vijayakumar Majage, learned Additional SPP argued in support of the judgment of the Court below.

Out of 17 witnesses examined before the Court, eight witnesses (P.Ws. 3, 4, 5, 6, 7, 11, 12 and 13) have turned hostile to the case of the prosecution; the evidence of hostile witnesses may not help either to the case of the prosecution or to the defence in the matter on hand. Among them, P.W. 3 is sister of the deceased and P.Ws. 11 and 12 are the witnesses for recovery of crowbar (M.O. No. 10) at the instance of the accused.

P.W. 1 is the complainant. He lodged the complaint as per Ex. P1 at about 9.00 a.m. on 14.5.2007. The complaint reveals the motive of the deceased to commit the offence inasmuch as it is specified in the complaint that the deceased was telling the accused that he would marry Mubhina, who is the daughter of his maternal uncle since the accused did not beget any child despite nine years of their marriage. It is also specified in the complaint that quarrels used to take place between the accused and the deceased frequently.

P.W. 2 is the neighbour of the accused and the deceased. She saw the accused going away from the scene of offence wearing burka. Having suspicion in her mind, P.W. 2 entered the house of the deceased and saw the dead body in a pool of blood. She raised alarm, consequent upon which, P.W. 1 and others apprehended the accused.

P.W. 3 is the sister of the accused who has turned hostile to the case of the prosecution. However, she has deposed that the accused and the deceased were living happily.

P.Ws. 4 and 5 are the witnesses for scene of offence panchanama at Ex. P2 and inquest panchanama at Ex. P5. Both of them have turned hostile to the case of the prosecution.

P.Ws. 6 and 7 are the circumstantial witnesses, who have also turned hostile to the case of the prosecution.

P.W. 8 is another sister of the deceased. She has also deposed about the motive for commission of offence.

P.W. 9 is another witness for scene of offence panchanama at Ex. P2 and inquest panchanama at Ex. P5. He has supported the case of the prosecution.

P.W. 10 is the father of the deceased. He has deposed about the motive for commission of offence. Though he was sleeping outside the house on a katta, he is not an eye witness to the incident in question.

P.Ws. 11 and 12 are the witnesses for recovery of crowbar (M.O. No. 10) under panchanama at Ex. P8. Both of them have turned hostile to the case of the prosecution.

P.W. 13 is the witness for panchanama at Ex. P10 under which clothes of the deceased were seized. He has also turned hostile to the case of the prosecution.

P.W. 14 is the member of Village Panchayat, who has issued house extract of the deceased wherein the incident took place.

P.W. 15 is the Investigating Officer, who completed the investigation and laid the charge sheet.

P.W. 16 is the doctor who conducted the postmortem examination over the dead body. Postmortem report is at Ex. P22.

P.W. 17 is the Sub-Inspector of Police who registered the crime based on the complaint at Ex. P1.

From the above, it is clear that the case of the prosecution revolves around the evidence of P.Ws. 3, 8 and 10 who are the family members of the deceased. Postmortem report at Ex. P22 and the evidence of the doctor-P.W. 16 who conducted the postmortem examination clearly reveal that the death is due to shock and haemorrhage as a result of injury to vital organ, i.e., the brain and multiple fractures of the skull. Time since death at the time of postmortem examination was about 6 to 12 hours prior to postmortem examination. The postmortem was conducted from 1.30 p.m. to 3.00 p.m. on 14.5.2007, which means that the incident has taken place at early hours of 14.5.2007.

Case of the prosecution is that the deceased-, being the husband of accused had a grievance against the accused that she did not beget child after the death of the first child and the deceased was telling the accused that he would marry another girl by name Mubhina. In that regard, quarrels used to take place between the couple frequently. Aforementioned aspect of the matter is spoken to by P.Ws. 8 and 10 sister and father of the deceased respectively. Both these witnesses have deposed that the deceased used to quarrel with the accused, inasmuch as he wanted to remarry another girl for the aforementioned reason.

The complaint at Ex. P1 is lodged by an independent witness who knew the accused and the deceased. In the complaint also, it is specified about the motive for commission of the offence. It is stated in the complaint at Ex. P1 that there used to be frequent quarrels between them inasmuch as the deceased was telling the accused that he would remarry since the accused did not beget the child. The evidence of P.Ws. 8 and 10 as well as the evidence of P.W. 1 (complainant) with regard to motive for commission of offence has remained unimpeached. All these witnesses have consistently deposed about the motive for commission of offence. The trial Court in our considered view is justified in concluding that the motive for commission of offence is proved by the prosecution.

There are no eye witnesses to the incident in question. However, P.W. 10 has deposed that the accused and the deceased slept in the house during night intervening between 13.5.2007 and 14.5.2007 and the accused was apprehended at the early hours of 14.5.2007.

The evidence of P.Ws. 1 and 2 also discloses that the accused wanted to go away from the scene of offence wearing burka at 7.00 a.m. on 14.5.2007 and she was apprehended by P.W. 1 and others, inasmuch as P.W. 1 raised alarm in the area after suspecting the hands of the accused in committing the murder of the deceased. Therefore, it is clear that the incident has taken place within the house in which only accused and the deceased were present during the relevant point of time. P.W. 10 (father of the deceased) was sleeping outside of the house on a katta. Therefore, it is for the accused to explain as to under what circumstances, the incident has taken place. But in the matter on hand, no explanation is forthcoming from the defence. Even in her statement recorded under Section 313 of Cr.P.C. the accused has not explained the vital circumstances against her.

Be that as it may, the fact remains that the incident has taken place within the house wherein the accused and the deceased had slept during the night. There is nothing on record to show that some third person had entered the house and committed the murder of the deceased. No explanation is forthcoming in whatsoever from the accused as to the manner of the incident or cause for the incident. It is also not disputed that it is a case of homicidal death and the assault was on the head of the deceased with crowbar. We have already concluded that the motive for commission of the offence is proved by the prosecution. Thus, it is clear that the accused and the accused alone has committed the crime by assaulting the deceased with iron crowbar on his head at the early hours of 14.5.2007 when she was alone in the house along with the deceased. Looking to the facts and circumstances of the case, we are of the firm opinion that the accused needs to be convicted for the offence punishable under Section 304 Part-II of IPC and not under Section 302 of IPC. Undisputedly it is the case of the prosecution itself that the deceased being the husband of the accused was pressurizing her to agree for the second marriage of the deceased with another girl by name Mubhina since the accused did not beget any child after the death of their first child and there used to be frequent quarrels between them. The defence advocate is justified in contending that on the early hours of 14.5.2007 also, quarrel might have ensued between the accused and the deceased on the very ground that the deceased was pressurizing the accused to agree for his second marriage with Mubhina and in that regard being intolerant, the accused assaulted on the head of the deceased with a crowbar.

We also find justification in the contention of the learned advocate appearing for the accused-appellant herein that there is no pre-meditation in the mind of the accused to commit crime and the accused might have committed the crime because of the sudden and grave provocation by the deceased. There is no material to show that the accused had made preparation for the commission of offence. The seized iron crowbar. M.O. No. 10 (in Kannada it is called as haare kolu) which is used for commission of the offence by the accused is commonly found in almost all the kitchens of rural houses as a kitchen implement. Therefore, we are of the opinion that the accused had not made any prior preparation, but due to sudden provocation by the deceased, having taken the crowbar from the kitchen, hit on the head of the deceased inasmuch as she was intolerant about his behavior of quarreling with her frequently saying that he would remarry another girl. Hence, the accused is liable to be convicted for the offence punishable under Section 304 Part-II of IPC.

We have heard the learned advocates on record on the question of imposition of sentence. The deceased has already undergone imprisonment for a period of about more than eight years.

Having heard on the question of sentence, the following order is made:-

i) The accused-appellant herein is convicted for the offence punishable under Section 304 Part-II of IPC. She is sentenced to undergo imprisonment for a period of which she has already undergone.

ii) The sentence already served by the accused shall be given set off as provided under Section 428 of Cr.P.C.

iii) The judgment and order of conviction, dated 21.6.2008, passed by the Additional Sessions Court, Shimoga in S.C. No. 220/2007 is modified accordingly.

iv) Since the appellant-accused has already served the sentence, she shall be set at liberty forthwith if she is not required in any other case.

Appeal is allowed in part accordingly.

We place on record the valuable assistance rendered by Sri Vishwanath Poojary, learned advocate appearing on behalf of the appellant-accused, who is entrusted the brief by the High Court Legal Services Committee.

In view of the above, Secretary of the High Court Legal Services Committee is directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) to Sri Vishwanath Poojary, learned advocate, as honorarium.