Sri. Ananda Kumara vs The State of Karnataka

N. Ananda, J.—The accused has filed this appeal against judgment of conviction for an offence punishable u/s 302 I.P.C.

We have heard Sri. R.S. Arun Kumar, learned Counsel for accused and Sri. P.M. Nawaz, learned Addl. SPP for State. We have been token tiirough evidence and the impugned judgment.

In brief, the case of prosecution is as follows:

The accused had married one Pushpa (since deceased) on 21.02.1999. After the marriage, deceased Pushpa was living in the house of accused situated at No. 52, 3rd Cross, Ramaswamy Layout, New Byappanahalli Bangalore-38. The mother of accused viz., PW.9-Smt. Chikka Venkatamma was also staying with accused and the deceased in the first floor of the house. The accused used to come home in a drunken state and assault the deceased. The deceased used to frequently visit her parental house in Agara village, Belur Taluk, Hassan District.

On 10.05.2004, during night the accused come home in a drunken state and picked up quarrel with, the deceased. When PW.9 (mother of accused) intervened to pacify the quarrel, the accused attempted to assault PW.9. At that time, the deceased assaulted the accused with a screw driver. The accused pushed his mother PW.9 out of the house and bolted the doors from inside. Thereafter, the accused repeatedly assaulted the deceased with a screw driver. The accused felled the deceased and caused her death by smothering.

On the following day, the accused appeared before the Station House Officer of Byappanahalli P.S. and confessed the crime, on the basis of which crime No. 91/2004 was registered against the accused for an offence punishable u/s 302 IPC. The investigating officer visited the house of accused and found the dead body of deceased Pushpa and also seized a blood stained pillow and a lungi from the place of incident. The investigating officer recorded the statements of witnesses. On completion of investigation, he submitted charge sheet against the accused.

During trial, PW''s. 1 to 18 were examined, documents as per Ex.P1 to P19 and material objects as per MO''s. 1 to 9 were marked. On behalf of accused one Harish was examined as DW. 1. The contradictory-portions of statements of PW.2-Lakhsmamma, PW.6-Gururaj and PW. 11-Gangadhar recorded u/s 161 Code of Criminal Procedure, were marked as Ex.D1 to D3.

The learned trial judge on appreciation of evidence and on hearing the learned Counsel for parties held the accused guilty of an offence punishable u/s 302 I.P.C.

The facts which are not disputed by the accused are stated as follows:

The accused had married deceased Pushpa on 21.02.1999. PW.2-Lakshmamma and PW. 13-Dasegowda are the parents of deceased and they are natives of Agara village, Belur Taluk, Hassan District.

After the marriage, the deceased was staying in the first floor of house of accused situate at No. 52, 3rd Cross, Ramaswamy Layout, New Byappanahalli, Bangalore-38. PW.9-Smt. Chikka Venkatamma is the mother of accused and she was also staying with accused and deceased.

The medical evidence given by PW. 18-Dr. Sumangala and the contents of postmortem examination report would reveal that the deceased had suffered following external injuries:

Right black eye present.

Abrasion was present middle of right eyebrow, measuring 2 � 1 cms.

Abrasion was present over inner aspect of left eyebrow at its medial length, measuring 1 cm � 1 cm,

Abrasion was present over outer end of left eyebrow measuring 1 cm � 1.5 cm.

Abrasion was present over right side of nose near the tip measuring 1 cm � 0.5 cm.

Diffuse contusion was present over middle of forehead measuring 4 cm � 6 cm.

Diffuse contusion was present over upper half of nose measuring 3 cm � 1.5 cm.

Laceration was present over tip of nose measuring 0.7 cm � 0-5 cm � 0.3 cm.

Contusion was present over inner aspect of right side of lower lip measuring 3 cm � 2 cm with a laceration measuring 1 cm � 0.5 Cm � 0.5 cm.

Multiple abrasions were present over front of left side of neck ranging from 1 cm � 0.2 cm to 2. cm � 1 cm situated 3 cm below the angle of Jaw on left side.

Oblique abrasion present over front of middle of the neck measuring 2 cm � 0.5 cm situated 3 cm above suprasternal notch.

Abrasion was present over back of right elbow two in number each measuring 1 cm � 0.2 cm and 1 cm � 0.3 cm.

On reflection of Scalp, there was extravagation of blood over frontal region over an area of 8 cm � 12 cm, both parietal region over an area of 15 cms � 10 cms. and over middle of occipital region, 3 cm � 2 cm. Skull was intact. Membranes was intact and brain was intact.

CHEST VALVE : On reflection of chest valve, there was extravagation of blood at sterno rnadibular joint over an area of 5 cm., � 4 cms.

RIBS : Right side, first and second rib was fractured at sternal ends, blood was extravasated. Left side intact. All chest organs were intact.

PW. 18 has opined that the death was due to asphyxia as a result of compression over nostrils and mouth.

The homicidal death of Pushpa in the house of accused during the intervening night of 10/11-05-2004 has not been controverted. It is the case of prosecution that accused had assaulted deceased in a drunken state and caused her death by compression of her nostrils and mouth. The accused has come out with a defence that during the intervening night of 10/11-05-2004 the accused was sleeping in the arrack shop run by his brother. The accused came to his house at about 7.00 p.m., on 11.05.2004 and noticed the homicidal death of his wife, therefore, be went 10 Byappanahalli police station to lodge the first information and at that time. Byappanahalli police detained and arrested him.

The important witness namely PW.9, mother of the accused who was present inside the house before the incident and outside the house at the time of incident, has not supported the case of prosecution. It is obvious due to her relationship with the accused.

Therefore, the prosecution has relied on following circumstances:

i) Motive

ii) The accused gave information that he had committed the murder of his wife in his house during the intervening night of 10/11-05-2004 before PW. 16 who was the Station House Officer of Byappanahalli P.S., at the relevant time.

iii) The information given by the accused led to recovery of a screw driver and blood stained clothes

iv) The accused had suffered injuries

v) The accused had putforth false plea of alibi

i) MOTIVE:

The prosecution has relied on the evidence of parents of the deceased in proof of motive. PW.2-Lakshmamma mother of the deceased and PW. 13-Dasegowda have given consistent evidence that after the marriage, the deceased was living in the house of accused. The accused used to come home in a drunken state and assault the deceased and was not providing the basic amenities including provisions for maintenance of deceased. The deceased used to visit the house of her parents frequently to get money for her sustenance. The accused used to leave the house without informing deceased. During cross-examination of PW.2 and PW. 15 nothing has been elicited to discard their evidence. Therefore, we hold that the accused used to come home in a drunken state and assault the deceased and he was not taking care of the deceased.

PW. 16-Ashwathanarayana, the then Police Inspector of Byappanahalli P.S., has deposed; that on 11.05.2004 at about 8.30 a.m., the accused appeared before him in Byappanahalli police station and confessed that he has killed his wife Pushpa in his house and led the investigating officer to his house and also showed the weapon of assault. On the basis of first information given by accused, PW. 16 registered a case in Crime No. 91/2004 against accused for an offence punishable u/s 302 IPC. The Police inspector and other staff members visited the place of incident and found the dead body of Pushpa and also recovered a screw driver and blood stained clothes from the place of incident. The police officer held inquest and the dead body was subjected to postmortem examination. The first accused had also suffered certain injuries and he was examined by PW.1-Dr. S. Rajanna. Orthopaedic Surgeon of Bowring Hospital.

PW.1 has deposed; that on 11.05.2004 at about 12.10 p.m., (afternoon) fie examined the accused in Bowring hospital and found the following injuries:

1) One piercing injury measuring about 1 cm depth on the left elbow.

2) Two piercing injuries on the left elbow each measuring 1 cm

3) One piercing injury measuring 1 cm on the right elbow

4) An abrasion measuring 2cm � 1 cm on the right knee

The learned Counsel for accused would submit that the confessional statement made by the accused cannot be used in view of the bar contained in Section 25 of the Evidence Act. The accused had not led the investigating officer to his house; and the incriminating articles such as screw driver, blood stained clothes were not recovered at the instance of the accused. In the circumstances, the learned trial judge was not justified in placing reliance on the recoveries and also on the confessional statement made by the accused.

The learned Additional SPP relying on the judgment of Supreme Court reported in 1994 SCC (CRI) 555 in the case of Bheru Singh v. State of Rajasthan would submit that, even if the confessional statement contained in the first information given by the accused is not admissible in evidence, yet non-confessional part of the first information and part of first information leading to discovery of fact can be used against accused u/s 8 and Section 27 of the Evidence Act.

In the aforestated judgment, the Supreme Court has held thus:

Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act, No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The first information report recorded u/s 154 Code of Criminal Procedure is not a substantive piece of evidence. It may be used to corroborate the informant u/s 157 of the Evidence Act or to contradict him u/s 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct u/s 8 of the Evidence Act and to the extent it is no confessional in nature, it would also be relevant u/s 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act.

In view of what has been held in the above decision, we are of the opinion, that part of the statement as admissible u/s 27 and the non-confessional statement found in the first information given by the accused can be used against him u/s 27 of the Evidence Act and also u/s 8 of the Evidence Act.

In the case on hand, admittedly the accused was not known to the investigating officer till he appealed before him. On the information volunteered by the accused, the investigating officer visited the house of accused and saw the dead body of his wife (Pushpalatha) with multiple injuries and recovered a screwdriver and blood stained lungi and pillow from the place of incident. Therefore, this part of evidence is admissible u/s 27 of the Evidence Act. The accused had suffered injuries however, he has not offered any explanation as to the circumstances under which he had suffered injuries. Therefore, the first information lodged by the accused can be considered to judge the conduct of accused.

The homicidal death of wile of the accused had taken place in his house, in the presence of accused. Therefore, the accused owed a duty to offer explanation. The failure of accused to offer any explanation or explanation offered by accused is found false that would be a strong circumstance against the accused.

In a decision reported in Trimukh Maroti Kirkan Vs. State of Maharashtra, the Supreme Court has held:

Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P. it was observed that the fact that, the accused alone was with his wife in the house when she was murdered there with ''khukhri'' and the fact, that the relations of, the accused with her strained would, in the absence of any cogent, explanation by him, point to his guilt. In Caneshlal v. State of Maharashtra the Appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the Appellant is under an obligation to give a plausible explanation for the cause of her death in his statement u/s 313 Code of Criminal Procedure. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the Appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him u/s 302 IPC. In State of T.N. v. Rajendran the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.

In the case on hand, the accused has come out with an explanation that during the intervening night of 10/11-05-2004, he was not staying in the house and he was slept in the arrack shop run by his brother Krishnappa. In order to prove the same, the accused has examined one Harisha as DW. 1.

DW. 1 has deposed; that on the date of incident, the accused had slept in the arrack shop run by his brother Krishnappa. He left the arrack shop at about 7.00 p.m. During cross-examination, DW. 1 has deposed; that there are no documents to prove that the brother of accused was running the arrack shop and also to prove that DW. 1 was working in that arrack shop.

The main difficulty in accepting the evidence of DW. 1 in proof of alibi putforth by accused is that, DW. 1 had not stated the distance between the house of accused and arrack shoo where the accused was allegedly staying during the intervening night of 10/11.05.2004. The brother of accused by name Krishnappa who is said to be the Licensee of arrack shop was not examined before the Court. The accused has not explained the circumstances under which he had suffered injuries. DW. 1 has not deposed that the accused had suffered injuries when he was sleeping in the arrack shop during the intervening night of 10/11.05.2004. Therefore, it is a case where the accused has offered false explanation regarding homicidal death of his wife, which had taken place in his house. The prosecution has proved beyond reasonable doubt that the accused was very much present, in his house prior to incident and also after the incident. Therefore, the false plea of alibi putforth by the accused constitutes a strong circumstance against, accused.

In the circumstances, the learned trial judge was justified in holding that, the accused had caused the homicidal death of his wife in his house during the intervening night of 10/11.05.2004.

The learned Counsel for accused would submit that, as per the case putforth by the prosecution, the accused had suffered injuries. At the first instance, the deceased had assaulted the accused with a screw driver, therefore, the entire incident had taken place in a sudden quarrel. In the circumstances, the accused can be held guilty of an offence punishable u/s 304 Part II I.P.C.

The contents of first information lodged by the accused would reveal that when the quarrel took place between the accused and deceased, the mother of accused (PW.9) tried to pacify the quarrel. At that time, the accused tried to assault his mother. In order to prevent, the accused from assaulting his mother, the deceased assaulted accused with a screw driver. We have referred to the injuries suffered by the accused and also the injuries suffered by the deceased and the cause of death.

In order to attract Exception 4 to Section 300 I.P.C. it is necessary that : an offence of culpable homicide should have been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

In the case on hand, the deceased bad dealt some blows on the accused with a screw driver when the accused tried to assault his mother with a screw driver. Thereafter, the accused repeatedly assaulted the accused with a screw driver and compressed her nostrils and mouth with a pillow and caused her death by asphyxia. Therefore, it cannot be said that accused had not acted in cruel manner and he had not taken undue advantage of the helplessness of his wife. Therefore, it is not possible to hold that the case on hand falls under Exception 4 to Section 300 I.P.C.

On reconsideration of the matter, we hold that the learned trial judge on proper appreciation of evidence has convicted the accused for an offence punishable u/s 802 I.P.C. We do not find any reasons to interfere with the impugned judgment.

In the result, we pass the following:

ORDER

The appeal is dismissed.