M. Narasimhappa vs The State of Karnataka

Mohan M. Shantana Goudar, J—The judgment and order dated 13.6.2011 passed by the Fast Track Court-II, Chinthamani in Sessions Case No. 90/2010, is called in question in this appeal by the convicted accused.

By the impugned judgment, the trial Court has convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs. 25,000/-.

Case of the prosecution in brief is that the deceased Shivamma is the second wife of the accused; two children were born out of the wedlock between the deceased and the accused; one child was born out of the wedlock between the deceased and his first wife; after eight years of the second marriage, disputes arose between the accused and his second wife/deceased; the accused used to harass the deceased both physically and mentally pressurizing her to get money from her parents place, in as much as, her two brothers were in government job at Bangalore; the accused was a poor person; since the deceased practically deserted the accused and started living in her parents place along with the children, accused used to pressurize the deceased to join him and to lead matrimonial life; the accused was normally living with his first wife and the child, since the second wife/deceased started living in her parents place; the accused used to suspect the fidelity of the deceased in as much as, he was of the impression that the deceased had illicit relationship with one Andhra Narasimhappa/driver of a tractor and in that regard, he had grievance against the deceased; about five days prior to the incident, the accused came to the parents house of the deceased and started living in the said village; he used to accompany his wife to the agricultural lands for getting fodder for the cattle; on the date of the incident also i.e., on 31.5.2010, accused and deceased left the house of the parents of the deceased at 9.00 a.m. to go to agricultural land for bringing fodder; P.W.1-the mother of the deceased/complainant saw the deceased and the accused going together for bringing fodder from the agricultural land; till night, neither the deceased nor the accused returned back to home; the in-laws of the accused i.e., the parents of the deceased and other relatives in the village searched for the deceased as well as the accused, but they could not get any clue; on the early hours of 1.6.2010 i.e., on the next date of the incident, the relative of the deceased namely Anjamma told P.W.1 that the dead body of the victim is found lying in the garden of Gowdara Ramanna; the parents of the deceased and others rushed to the garden land of Gowdara Ramanna and found the dead body of the deceased. The head of the deceased was crushed with stone, the clothes of the deceased, the place wherein the deceased was lying and the stone were all blood stained.

Complaint came to be lodged as per Ex. P1 by P.W.1 Anjinamma at about 9.45 a.m. on 1.6.2010 before Kencharlahalli police station, which came to be registered in Crime No. 77/2010 by the Assistant Sub-Inspector of Police (P.W.11) for the offence punishable under Section 302 of IPC. P.W.16, the Inspector of Police, completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 17 witnesses and got marked 30 exhibits and 4 material objects. On behalf of the defence, 2 exhibits were got marked.

As aforementioned, 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 for the appellant taking us through the entire material on record and the judgment of the Court below submits that the accused is falsely implicated in the crime; the accused was not at all present in the village and consequently, there was no question of he accompanying the deceased to the land for bringing fodder during the relevant date; the circumstances relied upon by the prosecution are not proved beyond reasonable doubt; the only circumstance relied upon by the prosecution is that the last seen circumstance which alone is not sufficient to bring home guilt against the accused; the prosecution has relied upon three motives for commission of the offence and none of these motives is proved by the prosecution; PW.8 (brother of the deceased) being the Police Constable working at Bengaluru foisted the case against the accused. On these among other grounds, he prays for acquittal of the accused.

Per contra, Sri. Chetan Desai, learned Government Pleader argued in support of the judgment of the Court below.

There are no eye witnesses to the incident in question; the case rests on the circumstantial evidence; three circumstances relied upon by the prosecution are as under:

(i) Recovery of M.O.1 - blood stained stone used for commission of offence at the instance of the accused on 2.6.2010;

(ii) The last seen circumstance spoken to by PW.1;

(iii) Motive for commission of offence spoken to by PWs.1, 8 and 12;

The accused has not given any explanation as to when he parted the company of the deceased and as to how and in what circumstance, the death took place.

Though, it is the case of the prosecution that based on the voluntary statement of the accused - Ex. P12, M.O.1 - the blood stained stone was alleged to be recovered under panchanama - Ex. P8 in the presence of PW.9 on 2.6.2010, it has failed to prove the said circumstance. PW.9 in his examination-in-chief itself has deposed that he along with the Police went to the scene of offence on 1.6.2010 i.e. the date on which the dead body was found and the spot mahazar - Ex. P2 was conducted on the scene of offence. It is specifically admitted by PW.9 that blood stained stone, blood stained mud, blood stained towel which were lying on the scene of offence were seized vide Ex. P2 on 1.6.2010 itself. If it is so, the story put-forth by the prosecution that the stone - M.O.1 recovered at the instance of the accused on 2.6.2010 based on the voluntary statement, cannot be believed. Therefore, the first circumstance relating to alleged recovery of M.O.1 -stone is not proved by the prosecution. Therefore, we conclude that the prosecution has not proved the first circumstance relating to recovery of M.O.1 at the instance of the accused.

With regard to the last seen circumstance, the prosecution has relied upon the evidence of PW.1 - the mother of the deceased that the accused and the deceased went from her house for collecting fodder at 8.30 a.m. At that time point of time, PW.1 did not suspect anything against the accused. This version of PW.1 has practically un-controverted by the defence. Nothing worth is elicited in the cross-examination of PW.1 to discard her evidence with regard to the said circumstance. Even PW.12 - the father of the deceased has deposed about the last seen circumstance inasmuch as he has also seen the accused and the deceased proceeding together towards agricultural land for fetching fodder. However in the cross-examination, PW.12 has admitted that he was a Village Assistant at the relevant point of time and he left the house at early hours on 31.5.2010 and he did not see as to in which direction the accused and the deceased went.

Be that as it may, the evidence of PW.1 - mother of the deceased has remained un-controverted and in that regard, the Trial Court is justified in concluding that the last seen circumstance relied upon by the prosecution is proved.

The prosecution has relied upon three motives i.e.,

(i) The accused used to harass the deceased pressurizing her to bring money from her parental house;

(ii) The accused was pressurizing the deceased to join him and to lead a marital life;

(iii) The accused was suspecting the fidelity of his wife/deceased, since he had an information that the deceased was having illicit relationship with one Andra Narasimhappa, who was the driver of the tractor of Gowdara Ramanna;

Looking to the entire material on record, in our considered opinion, the prosecution has not proved the first and second motives as alleged.

However, looking to the suggestion made by the defence to the prosecution witnesses more particularly, PWs.1, 8 and 12, it is clear that the accused was suspecting fidelity of his wife/deceased. Added to it, the accused was pressurizing the deceased to lead marital life with him inasmuch as she started living in her parental house; PW.1 - the mother of the deceased has clearly admitted in her cross-examination that the accused and the deceased were living amicably and they had full confidence of each other, which means the motive projected by the prosecution must have become stale inasmuch as there was no quarrel whatsoever between the accused and the deceased within short period prior to the incident. However, the fact remains that the accused was suspecting the fidelity of his wife/deceased.

PWs.1 and 12 have clearly admitted before the Court that though the accused had come to the village about five days prior to the incident, he did not stay in the house of the deceased on the previous day and he stayed in the house of brother of PW.12. It is specified by PW.12 that the accused came to the house of the parents of the deceased on 31.5.2010 and had coffee along with the family members of the deceased; after drinking coffee, the deceased and the accused went together for bringing fodder, which means the accused did not have any grievance against the deceased since five days at least.

With regard to the last seen circumstance, the accused has not explained as to where he parted the company of the deceased and when the death of the deceased has taken place. The presumption would arise against the accused that if the accused did not explain as to how, where and when he parted the company of the deceased, such presumption cannot be discarded by the accused.

As has been held by the Apex Court in the case of Rohtash Kumar Vs. State of Haryana, (2013) 6 AD 580 : (2013) CriLJ 3183 : (2013) 8 JT 181 : (2013) 3 RCR(Criminal) 355 : (2013) 7 SCALE 472 : (2013) 14 SCC 434 , the doctrine of last seen together shifts the burden of proof on the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him. In the said matter, the accused was not able to rebut such presumption and hence, conviction was confirmed.

In this matter also the accused has not explained as to where and when, he parted the company of the deceased.

Having regard to the aforementioned discussion, we are of the opinion that the accused and the deceased lived cordially at least for few days prior to the incident in question. However, the records disclose that the accused was pressurizing the deceased to live with him in her matrimonial house. In other words, the accused did not allow her to live in her parental house. The dead body of the deceased was found in garden land of Gowdara Ramanna. The driver of the tractor of Gowdara Ramanna i.e. Andra Narasimhappa was being suspected by the accused inasmuch as he was having illicit relationship with his wife. It has also come on record that the said area was a crime prone area and such fact is admitted by PW.1 in her evidence. The incident has occurred in May i.e. in summer. It is also admitted that the garden land of Gowdara Ramanna had no irrigation facility. If it is so, there was no reason for the deceased to go to that land for bringing fodder inasmuch as the fodder cannot grow without water facility. In that regard, the learned counsel for the defence is justified in arguing that the accused was strongly provoked by the deceased to go to the land of Gowdara Ramanna under whom the driver of the tractor Andra Narasimhappa was working; such aggression and strong provocation might have led the accused to indulge in this crime which has resulted in the death of the deceased.

Looking to the totality of the facts and circumstance of the case, offence committed by the accused falls within exception (1) of Section 300 of IPC. Consequently, accused is liable to be convicted for the offence under Section 304 Part - II of IPC.

We have heard the learned counsel on record on the question of sentence. The accused is in custody since the date of offence i.e. 2.6.2010. He has already undergone about more than five years. In our considered opinion, six years of imprisonment would be sufficient to be imposed on the accused under the facts and circumstance of the case. Accordingly, the following order is made:

(i) The judgment and order of conviction passed by the Trial Court convicting the accused for the offence punishable under Section 302 of IPC stands modified.

(ii) The accused is hereby convicted for the offence punishable under Section 304 Part - II of IPC.

(iii) He is sentenced to undergo imprisonment for a period of six years.

(iv) He is entitled to the benefit of set off as provided under Section 428 of Cr.P.C.

(v) Since the accused is poor, no useful purpose will be served by imposing fine on him.

Appeal is allowed-in-part, accordingly.