Jenukuruba Shivaji vs The State of Karnataka

Mohan M. Shantana Goudar, J.—1. The judgment and order dated 09.09.2011 passed by the Fast Track Court, Kodagu, Madikeri in Session Case No. 25/2007, is called in question in this appeal by the convicted accused. By the impugned order, the trial Court has convicted the accused for the offences punishable under Section 302 of IPC and sentenced to undergo imprisonment for life with a specific direction that the period of life imprisonment shall run till the last breath of the convict.

The case of the prosecution in brief is that the accused is the husband of the deceased � Muthamma, who is the second daughter of the complainant (CW. 1 - since he expired he was not examined before the Court). A female child was born out of the said wed-lock. The daughter of accused and deceased was aged about 08 years at the time of deposition and aged about 06 years at the time of incident. The accused was suspecting the fidelity of his wife/deceased very oftenly and he used to harass her both physically and mentally. He used to assault her with whatever weapon he gets in his hand, not only within the house but also out side the house. At about 01:30 p.m., on 10.11.2006, once again suspecting the fidelity of his wife, the accused started assaulting her. The deceased screamed and tried to run away. However, the accused chased her, dragged her once again inside the house and beat her on all over the body with the wooden club to the extent to commit her murder. Consequent to such assault, the deceased succumbed to the injuries. The complaint came to be lodged by CW. 1 - Jenukurubara Bhoja - father of the deceased at 01:00 p.m., on 11.11.2006 i.e., on the next date of the incident at Siddapura Police Station, same was registered in Cr. No. 88/2006 under Section 302 of IPC. The accused was arrested on 14.12.2006 and he was charged for the offence punishable under Section 302 of IPC.

In order to prove the case of the prosecution, in all 22 witnesses have been examined as PWs. 1 to 22 and in all 16 documents - Ex. P1 to Ex. P16 and four material objects - M.Os. 1 to 4 were marked. The defence did not examine any witness. The trial Court on evaluation of the materials on record convicted the accused for the offence punishable under Section 302 of IPC and sentenced him as mentioned supra.

Sri C.V. Sheelvant, learned counsel appearing on behalf of the appellant taking into consideration the material on record submits that the trial Court is not justified in convicting the accused under Section 302 of IPC. PWs. 8 and 9 who are the eye witness to the incident have turned hostile to the case of the prosecution. Other eye witnesses have given conflicting versions before the court. PW. 16 is the minor daughter of the accused and the deceased and she was not sure as to why she brought before the Court. Appreciation of the evidence by the trial court is improper and incorrect. Hence, he prays for acquittal of the accused.

Sri Vijayakumar Majage, Additional SPP has argued in support of the judgment of the court below.

PWs. 1, 2 and 3 are hearsay witnesses and they have deposed about the death of the deceased. They are inquest panchas and Ex. P1 is the inquest Panchanama. M.O. 1 was seized from the spot. PW. 4 is the mother of the deceased and PW. 5 is the uncle of the deceased. Both of them are also hearsay witness and they came to the spot only after hearing the news from others. They have not given any information relating to the incident in question. PWs. 7, 8, 9, 11, 16 are the eye witnesses to the alleged incident. PWs. 8 and 11 have not supported the case of the prosecution. PW. 16 is the child witness aged about 08 years and she is the daughter of accused and the deceased. PWs. 7, 9, and 16 have supported the case of the prosecution. PW. 10 is the Engineer who prepared the sketch of scene of incident. PW. 12 is the Photographer who took the photos of the dead body as per Exs. P7 to 10. PWs. 13, 14 and 15 are the police constables. They participated in the investigation at different levels. PW. 18 is the Sub-Inspector of Police of Ponnampet Police Station. He received the complaint as per Ex. P11. Based on which, a case in Cr. No. 88/2006 came to be registered in the said police Station for the offence punishable under Section 302 of IPC. He conducted part of the investigation. PW. 19 is the Doctor who conducted post mortem examination. Post mortem report is at Ex. P13. On examining M.O.I., he had given his opinion as per Ex. P14. 14 injuries were noted by the Doctor in the post mortem report and they were anti-mortem in nature. PW. 20 is the Deputy Tahsildar, Kushal Nagar. He gave the residential house certificate of the accused as per Ex. P15. PW. 21 is the owner of the house in which the accused and his family were residing, but he turned hostile to the case of the prosecution. PW. 22 is the investigation officer, who completed the investigation.

From the aforementioned facts, it is clear that entire case of the prosecution is based on the evidence of PWs. 7, 9 and 16, who are the eye witnesses to the incident. As mentioned supra, PWs. 8 and 11 though were eye witnesses have turned hostile to the case of the prosecution. The evidence of PWs. 8 and 11 is of no use either to the prosecution or to the defence.

Complaint - Ex. P11 came to be lodged by CW. 1 - father of the deceased based on the information gathered from the neighbours about the incident in question. The neighbours so given the information to CW. 1 are PWs. 7, 9 apart from PWs. 8 and 11. Evidence of PWs. 7 and 9 fully supports the case of the prosecution as found in the complaint as per Ex. P11 as well as charge sheet averments.

PW. 7 is an Assistant working in Government School. Her house is situated just two houses apart from the house of the deceased. She had come back to the house for lunch from school at 02:30 p.m. at that time he saw the accused assaulting the deceased with club. The deceased was screaming for help. PW. 7 and other neighbours namely Thayamma, Bunde Kariya and Kaveri (PW. 9) etc., went to the help of the deceased but the accused dragged her into the house and once again started assaulting her. Thereafter, PW. 7 went to the school and she came to know about the death of the deceased after she came back to the house in the evening.

Though PW. 7 was subjected to certain amount of cross-examination, nothing worth is elicited by the defence. Even in the cross-examination, PW. 7 reiterated that accused assaulted the deceased mercilessly consequent upon which the death was taken place.

Evidence of PW. 7 fully supported by the evidence of PW. 9. The house of PW. 9 is adjoining to the house of deceased and others. The name of PW. 9 - Kaveri is admitted by PW. 7 in her deposition, which means PW. 7 has confirmed the presence of PW. 9 on the spot at the time of incident. PW. 9 has also deposed meticulously as to how the incident has taken place. The evidence of PW. 9 discloses that at 02:00 p.m. incident has taken place. By that time the accused was assaulting the deceased mercilessly with a club. The deceased tried to escape from him by running away but the accused chased and dragged her inside the house and started assaulting her once again. PW. 9 was the home maker, hence, she resides in the house itself. Her presence on the spot was natural. Since she is the neighbour her presence cannot be doubted at all. Her evidence remains undisturbed, even after cross-examination by the defence. She has also re-iterated in the cross-examination that the accused assaulted the deceased mercilessly, consequent upon which the death has taken place. Though PWs. 7 and 9 tried to pacify the quarrel and tried to defuse the situation, the accused did not mend his conduct and he assaulted the deceased till her death.

Evidence of PWs. 7 and 9 is supported by the evidence of PW. 16 to the incident. PW. 16 was aged about 6 years at the time of the incident and she was aged about 8 years at the time her deposition. She deposed fully in favour of the prosecution in examination-in-chief. However, in the cross-examination, she deposed in favour of the defence to the effect that she was not present at the time of the incident in the house. However, in reexamination by the Public Prosecutor once again PW. 16 has deposed in favour of the prosecution. Even, in further cross-examination by the defence, no favourable answer is obtained in favour of the defence from the evidence of PW. 16. However, looking to the evidence of PW. 16, we are of the opinion that it is not safe to rely upon the evidence of PW. 16, because her evidence is oscillating.

Even excluding the evidence of PW. 16 from the consideration, we have consistent evidence of PWs. 7 and 9 in favour of the prosecution. The evidence of these two witnesses is not only consistent, cogent but also natural and reliable. Their presence on the scene of offence cannot be doubted. Even otherwise, the defence is not successful in bringing anything on record so as to discard the evidence of these two witnesses. In our considered opinion, the trial Court is justified in relying upon the version of these witnesses. We also do not find any valid reason to disagree with the reasons assigned by the trial Court that the evidence of PWs. 7 and 9 is reliable.

Since evidence of PWs. 7 and 9 is cogent, consistent and reliable and as we could not find any material to show that their presence can be doubted on the spot at the time of incident, we fully rely upon the evidence of these witnesses for coming to the conclusion. The evidence of these witnesses is corroborated by the medical evidence i.e., post-mortem report as well as evidence of the Doctor - PW. 19, who conducted post-mortem examination over the dead body. As mentioned supra, the deceased had sustained 14 injuries all over the body. The doctor has opined that the death was due to Sub-dular Hemorrhage.

Having regard to the facts and circumstances of the case, we do not find any reason to interfere with the judgment and order of the conviction of the accused passed by the trial Court convicting him for the offences punishable under Section 302 of IPC. However, in our considered opinion the trial Court may not be justified in imposing life imprisonment that should run till the last breath of the accused. The offence committed by the accused does not fall in between sentence of life and death punishment. Keeping the convicted accused in jail till his last breath is too harsh under the facts and circumstances. Therefore, that portion of the sentence needs to be modified. Accordingly, following:

ORDER

The portion of the sentence imposed by the trial court reading.

"The period of life imprisonment runs till the last breath of the convict"

Stands deleted.

Remaining portion of the sentence imposed by the trial Court on the convicted accused remains undisturbed.

The appeal is allowed in part accordingly to the aforementioned extent.