Jenukurubara Suresh vs State of Karnataka

Mohan M. Shantana Goudar, J.—Judgment and order of conviction dated 28th February 2011, passed by the Fast Track Court, Kodagu, in Sessions case No. 41/2009, is called in question in this appeal by the convicted accused.

The accused is tried and convicted for the offences punishable under sections 302 and 201 of IPC and he is sentenced to undergo imprisonment for life for the offence punishable under Section 302 of IPC. Three years'' sentence is imposed for the offence punishable under section 201 of IPC.

The case of the prosecution in brief is that deceased Janaki had married one Mani aged about 20 years prior to the incident in question; three children were born out of the said wedlock; P.W. 18 is one of the sons of the deceased born out the wedlock between the deceased and Mani; however, deceased had left the company of her husband and consequently, she started living with the accused since two years at a different village; she was addicted to the habit of drinking alcohol every day; the accused and the deceased were living under the same roof as husband and wife; they were doing coolie work in the coffee estate of P.W. 4-Dillu; there used to be frequent quarrel between accused and deceased.

During the night intervening between 30th January 2009 and 31st January 2009, the accused and deceased slept after taking food as usual. However, at 4.30 A.M. on 31.1.2009, the accused came to the house of P.W. 5, whose house is situated about 120 ft. away from the house of the deceased. Accused informed P.W. 5 about the death of the deceased; accused told P.W. 5 about the consumption of alcohol and non-taking of dinner by the deceased on the previous night; P.W. 5 in turn informed about the incident to P.W. 4; message was sent to police as well as to P.W. 18; P.W. 18 on visiting the spot, lodged the complaint as per Ex. P21 at 8.30 P.M. on 31.1.2009 which came to be registered in crime No. 25/09 of Ponnampet police station; P.W. 7 -Inspector of police laid the charge sheet after completion of investigation.

In order to prove its case, the prosecution in all examined 20 witnesses and got marked 21 exhibits and 3 material objects. On behalf of defence, no witness is examined. As aforementioned, the trial Court on evaluation of the material on record, convicted the accused for the offences with which he was charged.

Shri Manohar, learned Advocate appearing on behalf of the appellant submits that the burden is on the prosecution to prove complicity of accused in the crime. The offence has taken place in the midnight; since accused and deceased had consumed alcohol, the accused must have been fast asleep and during the interregnum, the deceased has gone out of the house wherein the incident has taken place. Since nothing is found on record to show that accused has throttled the deceased, the trial Court is not justified in convicting the accused. He further submits that genesis of the case of the prosecution is suppressed by the investigating officer. Merely because the accused is husband of the deceased, he could not have been convicted, that too merely on assumptions and suspicions. According to him, the chain of circumstances is not complete so as to bring home guilt against the accused.

Shri Venkatesh, learned SPP per contra argued in support of the judgment of the court below.

P.W. 1 is the relative of the deceased; she came to know about the death of deceased through accused. She is treated as hostile to the case of the prosecution.

P.W. 2 is the brother of the deceased. He has deposed about the motive for commission of the offence.

P.W. 3 also came to the house subsequent to the incident. However, he has turned hostile.

P.W. 4 is the employer of accused and deceased. P.W. 5 informed him about the incident and he also came later to the spot.

P.W. 5 is the relative of P.W. 4 and neighbour of accused. She was informed by the accused about the incident at about 4.30 A.M. on 31.1.2009 who in turn informed about the incident to P.W. 4.

P.W. 6 is witness for scene of offence panchanama-Ex. P4.

P.W. 7 is Taluka Executive Magistrate. He conducted inquest panchanama as per Ex. P3.

P.W. 8 is the engineer who drew the sketch of scene of offence as per Ex. P5.

P.W. 9 is the Zilla Panchayat Secretary who has issued house register extract as per Ex. P6.

P.W. 10 is the Superintendent working in the Estate wherein accused and deceased were working. He has deposed that the accused and deceased were living together in the same house in a coolie land. The estate is owned by P.W. 4-Dillu. Accused and deceased were doing coolie work and they were being paid Rs. 170/- per day respectively.

P.W. 11 is the writer in the coffee estate. He has deposed about the earlier incident of accused assaulting the deceased and consequently, the deceased suffering serious injuries. Consequently, she was treated in the hospital.

P.W. 12 is the driver of the car. He has deposed that the accused and the deceased were living in the same house belonging to P.W. 4. Though he was supposed to depose about the handing over of the cloths of the deceased, he has not deposed in that regard and therefore, he is treated hostile. However, his evidence is relevant insofar as the aspect of motive is concerned.

P.W. 13 is the Assistant Sub Inspector of Police. He received the complaint lodged at Ex. P21 and sent FIR to the learned JMFC.

P.Ws. 14 and 15 are the police constables who participated in the investigation at different levels.

P.W. 16 is the inspector who investigated into the crime in part.

P.W. 17 completed the investigation and laid the charge sheet.

P.W. 18 is the complainant. Complaint is as per Ex. P21. He is the son of the deceased. He has deposed about the motive for commission of the offence.

P.W. 19 is the doctor who conducted post mortem examination. P.M. report is at Ex. P19.

P.W. 20 is the witness for seizure mahazar-Ex. P13 under which cloths of the deceased were seized.

P.W. 21 is another village accountant who has issued R.T.C. extract.

P.W. 22 is the police constable, who carried first information report to JMFC.

There are no eyewitnesses to the incident in question. Hence, the case rests on circumstantial evidence. The circumstances relied upon by the prosecution are as under:

"a) Homicidal death;

b) Motive for commission of the offence;

c) The incident has taken place in the midnight in the house in which accused and deceased only were residing;

d) Non-explanation by accused about the death of the deceased in the house, in which he alone was present, along with deceased;

e) False explanation given by the accused immediately after the incident before P.W. 5 and others."

a) Re. Homicidal death: There is no much dispute with regard to homicidal death suffered by the deceased. The defence has not disputed the said aspect before the trial Court or before this Court. Even otherwise, the evidence of doctor-P.W. 19 who conducted post mortem examination proves beyond reasonable doubt that the death is homicidal in nature.

The deceased had sustained as many as eight injuries over her body. The doctor has opined that the death is due to asphyxia as a result of throttling. The same is the version found in the P.M. report- Ex. P9. Thus, it is clear that the death in question is homicidal in nature.

b) Regarding motive for commission of the offence:

The defence has not denied the fact that the deceased after parting the company of her husband Mani and children, started residing with the accused since two years prior to the incident. It is also admitted by the defence that deceased was habituated for drinking alcohol regularly; even on the date of incident also, the deceased and the accused consumed liquor without having dinner. It is further case of the accused that deceased died because of excess consumption of alcohol. It is also clear from the evidence on record that accused and deceased were living under the same roof i.e. in the same house. It is further case of the prosecution that the accused used to ill-treat the victim.

P.W. 13 - the Assistant Sub-Inspector of police has deposed that the accused had assaulted the deceased on 12.10.2008, i.e. about three months prior to the incident in question and hence, the deceased was admitted to hospital. The deceased had filed the complaint in that regard based on which case came to be registered in crime No. 142/2008 of Siddapur police station, for the offences punishable under sections 324 , 506(2) of IPC. In respect of said offences, accused was sent to judicial custody. In the complaint lodged therein as per Ex. P8, the deceased had alleged that the accused was threatening her with dire consequences of taking away her life. The accused was suspecting the fidelity of the deceased and he was not liking other people to talk with the deceased. After certain period of imprisonment, the accused was released from custody and thereafter accused and deceased started living in the same house. The evidence of P.W. 13-Assistant Sub-Inspector of police is supported by the evidence of P.W. 18. P.W. 18 is none other than the son of the deceased. He has also deposed about the earlier incident in which the deceased was seriously assaulted by the accused and accused had threatened her with dire consequences. This aspect of the matter is not denied by the accused, even in his statement recorded under Section 313 of Cr.P.C. Even otherwise, it could not have been denied by him inasmuch as it is a matter of record that the accused was in prison in connection with crime No. 142/2008 in which he had threatened the deceased with dire consequences and had assaulted her. According to the prosecution, the misunderstanding which arose earlier continued in the mind of the accused and that was the cause for commission of the offence. Since the complaint lodged by the deceased alleging that the accused had threatened her with dire consequences and had assaulted is on record, in our considered opinion, the prosecution has proved the circumstances relating to motive for commission of this offence.

c) Re. the circumstance relating to the incident having taken place in the house of the accused:

Undisputedly, the incident has taken place within the house of accused. Inquest Panchanama-Ex. P3 as well as scene of offence panchanama clearly reveal that the dead body was found in the house of the accused. As aforementioned, the deceased had sustained eight injuries including ligature mark on the neck. The evidence of P.W. 5 further supports the case of the prosecution that the incident has taken place in the house inasmuch as she has deposed that accused himself came and stated that the dead body of the deceased was in the house and that the death is due to accused consuming alcohol. It is also not in dispute that the accused and deceased only were residing in the said house. Even the time of incident is not in dispute inasmuch as according to accused, he got up at 3.00 A.M. and found the dead body in the house.

From the material on record, it is amply clear that the incident has taken place in the midnight intervening between 30th and 31st January 2009; the accused and deceased only were residing in the house; the dead body is found in the house of the deceased.

d) Non-explanation/false explanation: The other two circumstances regarding non-explanation/false explanation can be taken together for the purpose of convenience. P.W. 5 is the first person who got information from the accused about the incident in question. She has deposed that her house is about 120 ft. away from the house of the deceased. The accused and deceased were living in the said house; at 4.30 P.M. on the date of incident, the accused came to her house and told her that the deceased is not talking. Immediately thereafter, P.W. 5 went to the house of the accused and found the dead body of the deceased. She has further deposed that accused told her that he was not well during night and therefore, he went out and came back to the house and during the interregnum, the deceased has died. In other words, the accused told P.W. 5 that he was not responsible for the death of the deceased. P.W. 18-son of the deceased who lodged the complaint as per Ex. P21 deposed that he was informed by P.W. 5 and others that the accused suppressed the real incident and had told the neighbours including P.W. 5 that the deceased died due to consumption of excess alcohol.

On the other hand, as observed supra, the deceased had met with homicidal death. He has sustained eight injuries on her body including ligature mark on her neck. The doctor has opined that it is a case of throttling and not excess consumption of alcohol. These facts reveal that the accused has given false explanation about the cause of death immediately after the incident in question. Curiously, the accused has failed to explain any one of the said circumstances in his statement recorded under Section 313 Cr.P.C.

In this context, it is to be observed that the court can draw adverse inference against the accused. The courts may rely on a portion of the statement of the accused and find him guilty based on other evidence against him led by the prosecution, however, such statements made should not be considered in isolation but in conjunction with evidence adduced by the prosecution. If the accused gave incorrect or false answers during the course of his statement under Section 313 Cr.P.C., the court can draw an adverse inference against him.

In the present case, we are of the considered opinion that the accused has not only failed to explain his conduct in the manner in which every person of normal prudence would be expected to explain but had even given incorrect and false answers. In the present case, the Court not only draws an adverse inference against the accused, but such conduct of the accused would also tilt the case in favour of the prosecution. The aforesaid observations of us find support from the judgment of the Supreme Court in Munna Kumar Upadhyaya @ Munna Upadhyaya Vs. The State of Andhra Pradesh Through Public Prosecutor, Hyderabad, Andhra Pradesh, .

Since the accused was the only person who was in the house, as the incident has taken place in the midnight, it is incumbent on the accused to explain the circumstances as to how the deceased had sustained as many as eight injuries including ligature marks on the neck. Consequently, we are constrained to draw adverse inference against the accused. We hasten to add here itself that we do not wholly depend upon the non-explanation of the accused while recording statement under Section 313 Cr.P.C. alone, but non-explanation of the accused is considered by us in conjunction with entire material on record including motive, last scene circumstance etc. The accused was admittedly staying in the house of the deceased during relevant point of time.

Having regard to the totality of the facts and circumstances of the case, in our considered opinion, the trial Court is justified in convicting the accused for the offence punishable under section 302 of IPC. Even on reconsideration of the material on record, we do not find any ground to disagree with the reasons and conclusions reached by the trial court.

Accordingly, the appeal fails and stands dismissed.