State of Karnataka vs Babu @ Netaji Chougale and Another

M.S. Rajendra Prasad, J.—This appeal by the State u/s 378 Code of Criminal Procedure is directed against the Judgment dated 2.4.1998 passed in S.C. No. 50 of 1995 on the file of the I Additional Sessions Judge, Belgaum, wherein the learned Sessions Judge had recorded a finding of acquittal against the Respondents for the offences punishable under Sections 302, 506 read with 34 I.P.C., challenging the legality and validity of the said Judgment.

We have heard the arguments of both sides.

Sri B.A. Belliappa, learned Government Pleader, strenuously contended that the material on record clearly shows that the Judgment of the trial Court is illegal and invalid. The prosecution had successfully proved the guilt of the accused for the said offences. The evidence placed on record in clear, cogent and convincing. The learned Sessions Judge, without proper appreciation of the evidence on record, had arrived at a wrong conclusion and the same has resulted in miscarriage of justice. He also contended that the material on record clearly shows that the prosecution has been able to prove that A-1 had illicit intimacy with A-2 and the same has led for the accused to connive with each other and to do away with the life of Mallikarjuna Bannur, husband of A-2. Hence, the learned Government Pleader submitted that this Court will have to interfere with the Judgment of the trial Court.

On the contrary, Sri Ravi B. Naik, learned Counsel for the Respondents-accused, strenuously contended that the material on record clearly shows that the Judgment of the trial Court is legal and valid. The prosecution had utterly failed to bring home the guilt of the accused for the said offences. The evidence placed on record is highly insufficient and unacceptable. The learned Sessions Judge, after proper appreciation of the evidence on record, had arrived at a right conclusion in recording the finding of acquittal. The material on record clearly shows that there had been inordinate delay and there had been due deliberations amongst the prosecution witnesses before lodging the complaint and patently P.W.1 admits that he had not written the complaint. The learned Counsel further contended that these aspects are sufficient to belie the case of the prosecution and the appeal is devoid of merits. Hence, he prayed for dismissal of the appeal.

We have carefully perused the material on record and have given our anxious thoughts over the rival contentions raised.

From the material on record, it is seen that the entire case of the prosecution rests upon the following three aspects.

Firstly, the prosecution contends that deceased Mallikarjuna Bannur had died a homicidal death. To substantiate this aspect, the prosecution has relied upon Ex.P-4-inquest mahazar, where there has been a specific mention with regard to the injuries found of the deceased. Ex.P-13-P.M. Reports, also substantiates the injuries on the person of the deceased. P.W. 13 has deposed on par with the contents of Ex.P-13 with reference to his noticing the head injury, which was ante mortem in nature over the dead body of the deceased. He has given a definite opinion that the cause of death was due to shock as a result of injury to vital organ - brain. Though P.W.13 has been cross-examined, no material has been placed on record so as to discard his evidence. In addition, the prosecution relies upon the oral evidence of P. Ws. 1, 5 and 15, who have also deposed with regard to the presence of head injury over the body of the deceased. The cumulative effect of these, in our opinion, is sufficient to hold that deceased Mallikarjuna Bannur had died on homicidal death. Moreover, this aspect has not been seriously challenged by the accused.

Secondly, the prosecution has placed on record material to show that the A-1 had developed illicit intimacy with A-2 and the elders and well wishers had advised both of them, but in vain. In proof of this aspect, the prosecution initially relies upon the contents of Ex.P-1 complaint, which was lodged by P.W.1, and the material on record shows that this document had come into existence within a few hours of the incident. There has been a specific mention that the said illicit intimacy had been for the last one and half years as on the date of complaint. In addition, the prosecution relies upon the oral evidence of P. Ws 1 and 2, who are the sons of A-2 and the deceased. Both the witnesses have unequivocally deposed with regard to the illicit intimacy between the accused. Though both these witnesses have been subjected to lengthy cross-examination, nothing is brought on record so as to discard their evidence. P.W.4, father of the deceased, has also deposed that A-2 had kept illicit intimacy with A-1 and in spite of cross-examination of this witness, his evidence remains unchallenged. Above all, the prosecution relies upon the oral evidence of P.W.15-Iranna Sangappa Hanji, who happens to be the brother of A-2. In the course of evidence, he has also deposed with regard to the illicit intimacy between A-1 and A-2. This witness has also deposed that the deceased had informed him about the activities of A-1 and A-2 in jointly moving in Belgaum and the same had led for his getting angry. It is needless to mention that this witness happens to be the natural born brother of A-2 and he has totally supported the case of the prosecution in this behalf. Ex.P-1 having come into existence at the earliest point of time, in our opinion, due weight has to be given to the said document. The cumulative effect of all these, in our opinion, clearly goes to show that there had been illicit intimacy between A-1 and A-2 for quite some time. The evidence placed on record by the prosecution in this behalf is clear, cogent and convincing.

Lastly, the prosecution has let in evidence regarding the incident. The prosecution, in this behalf, banks upon the oral evidence of P.W.1, who, in the course of evidence, has deposed that on the relevant night, he had gone out of the house and returned around 8.30 p.m. and saw his father (deceased) was quarrelling with A-1 and A-2 in the house and A-2 was holding the legs of his father and A-1 was holding the crowbar and assaulted his father twice with the crowbar. This witness has been cross-examined at length and in spite of the same, nothing is elicited so as to discard his evidence, particularly in the light of the facts and circumstances of the case. It has to be noted that this witness has studied upto B. Com and was aged about 20 years at the relevant time. The learned Counsel for accused has also advanced another piece of argument to the effect that usually P.W.1 returns home around 9.00 p.m. and on that day, he is stated to have come home at 8.30 p.m. and such being the case, he happens to be a chance witness. In addition, the learned Counsel also contended that P.W.1, in the course of evidence, has admitted that he had not written the complaint. These aspects would definitely come in the way of the case of the prosecution. It is pertinent to mention that in the course of evidence, it has been elicited that on the relevant evening, he had gone to see his friends. As he was not able to meet any of his friends, he had come early. In view of these answers being elicited in the course of cross-examination, the submission of the learned Counsel for accused is unacceptable. Moreover, P.W.1, after all, had come back to his own house in the night. The conduct of this witness in this behalf cannot be doubted and cannot also be found fault with. So far as the second limb of argument is concerned, it is pertinent to mention that P.W.1 has not denied the contents of the complaint and merely because the complaint is not in the hand writing of P.W.1, in our opinion, the evidence of this witness cannot be totally brushed aside. Though this witness has been cross-examined at length, in our opinion, no noteworthy material is elicited so as to discard the evidence of this witness. It is also pertinent to mention that the evidence of this witness, in our opinion, has to be acted upon as the same inspires confidence. This witness happens to be the solitary witness for the incident. By settled principles of law, it is clear that the evidence of a solitary witness could be acted upon provided it inspires confidence in the mind of the Court. In view of the facts and circumstances of the case and having regard to the nature and quality of the evidence placed on record, in our considered view, the evidence of P.W.1 has to be accepted and the learned Sessions Judge, while appreciating the evidence on record, has observed that P.W.1 did not raise a hue and cry on witnessing the incident. It is pertinent to mention that the conduct and behaviour of each person would be different under the given circumstances. It has also to be borne in mind that at the relevant time, A-2 was holding the legs and A-1 was armed with the crowbar and was assaulting the deceased. In other words, both the accused were present at the relevant time and A-1 was armed with a deadly weapon. Just because P.W.1 does not go the rescue of his father or raise a hue and cry, in view of the nature and quality of the evidence placed on record by the prosecution, in our opinion, the evidence of P.W.1 cannot be rejected on this score and on the contrary, the Court will have to act upon the evidence of this witness and the observation of the learned Sessions Judge in this regard is unacceptable.

The cumulative effect of the evidence placed on record by the prosecution is that the prosecution has been able to prove that deceased Mallikarjuna Bannur had died a homicidal death and the accused had a motive for commission of the offence, and that the prosecution has also proved the incident in question. The learned Sessions Judge, while appreciating the evidence on record, in our considered view, had misread the evidence and the same had led to miscarriage of justice. We are also conscious of the settled principle of law that merely because this Court takes a different view, the Court cannot interfere with the Judgment of the trial Court in recording the finding of acquittal as the presumption of acquittal gets reinforced on the trial Court recording the finding to this effect. However, in the light of the facts and circumstances of the case and in view of the nature and quality of evidence placed on record, in our opinion, the approach of the trial Court had been totally erroneous and to meet the ends of justice, this Court will have to hold that the Judgment of the trial Court is illegal and invalid and the same will have to be set aside by this Court.

The other point that requires consideration of this Court is regarding the submission of the learned Counsel for Respondents which is to the effect that the accused had absolutely no intention or knowledge in doing away with the life of Mallikarjuna Bannur and as such the provisions of Section 302 I.P.C. are not applicable. The learned Counsel had taken us through the deposition of P.W.1 in this regard which is to the effect that on the relevant night when he went to the house, he saw his father (deceased) quarrelling with A-1 and A-2. According to the learned Counsel for Respondents, this quarrel might have provoked the accused in assaulting the deceased, husband of A-2. In this regard, it is necessary to mention that the definite case of the prosecution is that A-1 had developed illicit intimacy with A-2 and the discussion supra also shows that the prosecution has been able to prove this aspect as required under law and the deceased had died due to the injuries sustained on account of the overt acts of the accused. Now, this Court will have to consider as to whether the said piece of evidence leads to an inference that the accused had assaulted the deceased on account of grave and sudden provocation.

The material on record clearly shows that both the children of the deceased and A-2 have deposed with regard to the illicit intimacy of the accused inter se. P.W.4, father of the deceased, had also deposed that A-1 used to go to their house, eat food and also stay there and was doing all activities in their house. It is pertinent to mention that P. Ws.1 and 4 both have deposed to the said effect in their examination-in-chief itself. In the light of the facts and circumstances of the case, it is but natural that the deceased would have quarrelled with the accused and the same might have provoked the accused to assault him. It is pertinent to mention that as per the definite case of the prosecution, A-2 had held the legs and A-1 had assaulted the deceased by means of a crowbar (MO. 1). In view of the nature and quality of evidence placed on record and in the light of the facts and circumstances of the case, in our opinion, the case of the prosecution would fail within the first exception of Section 300 and the accused had committed the offence punishable u/s 304 II and not the offence punishable u/s 302 of Indian Penal Code.

For the foregoing reasons, the appeal is allowed in part. The Respondents stand convicted for the offence u/s 304 II of I.P.C. The Judgment of the trial Court stands modified accordingly.

Appropriate sentence will be passed on hearing the learned Counsel for accused.

After the Judgment was pronounced, we have heard the learned Counsel on both sides on the question of imposition of sentence. Learned Additional SPP submitted that even if the Court were to take into consideration everything that has been pointed out as an extenuating circumstance on behalf of the accused and the time factor, that this is a case which still calls for a reasonably heavy jail sentence and he has also submitted that in he special facts and circumstances of the case, if the Court shows any consideration on the length of sentence correspondingly in keeping with the Supreme Court''s decisions the quantum of fine must be steeply stepped up. The Respondent''s learned Counsel submitted before us that as inevitably happens, the incident of 1994 has culminated in the acquittal order in the year 1998, that the State appeal has been pending for 5 years and now, after the lapse of such a long period of time that under no circumstances of this case should the Court reconsign the accused to jail. In support of this, what he pointed out to us was that as far as Accused-2 is concerned that she is a lady and that secondly, she is the mother of two children and thirdly, that having regard to the fact that the role attributed to her was the barest minimum, that the Court should accept the plea that no further sentence be awarded. As far as A1 is concerned, as is submitted before us that it is very obvious from the facts that there had been a violent quarrel and from the relationship of the parties it is very clear that what transpired at this quarrel had obviously provoked the A1 to resort to the fatal blow. More importantly, the age of the A1 is pointed out to us and the important circumstance that after the order of acquittal he has been married, that he has young children, that he is virtually the bread winner of the family and that in the light of this background the Court ought not to award any further jail sentence to him.

We are conscious of the principles on the basis of which the learned Additional SSP has insisted on the awarding of a further sentence but at the same time, we need to balance our decision in the light of the principles repeatedly laid down by the Apex Court wherein the Court has, as far as possible, unless the facts are very gross, adopted the view that at a later point of time where the circumstances have considerably changed that it is not proper or desirable to re-consign a person to jail. One of the considerations which the Apex Court has repeatedly pointed out is the fact that even in the matter of punishment, prison sentence or a jail sentence is not the only answer because it is equally possible, particularly in the case of persons who come from a modest background, to ensure that the whole of their future life is not ruined by picking them up and sending them back of jail while at the same time the Court could impose what would work out to be a very heavy punishment if a substantial fine is awarded. To summarise, while dealing with this class of cases where violence has resulted in death or injury, the philosophy has always been that if the crime is psychological that the remedy must always be therapeutic and the Courts have again shifted over to considering that the rights of the victim are something which had earlier been overlooked. The life that has been lost cannot be restored but the next best is that the wife or the legal heirs could be to some extent assuaged both in their loss and hurt feelings as also in real economic terms by being awarded some monetary compensation which would perhaps to a very modest extent soothe the wounds.

It is on the basis of these considerations and after having very carefully applied our minds to the special facts of this case, that we hold that the A1 and A2 shall undergo imprisonment for the period already undergone by them and that each of them shall pay a fine quantified at Rs. 10,000/- each, in default to undergo RI for one year. The accused are granted 12 weeks time to deposit the fine amount in the Trial Court and in the light of what has been held by this Court, it would be desirable if the Trial Court in the event of default, were to take necessary steps, to ensure that the fine amount is recovered because the dominant intention of this Court in giving the option of fine is in order to ensure that PW1 and PW2 who are the children of the deceased should receive a sum of Rs. 10,000/- each as compensation. Hence, out of the fine amount when recovered the Trial Court to ensure that a sum of Rs. 10,000/- each is paid to P Ws1 and 2 as compensation.

With these directions, the appeal to stand disposed off. The bail bonds of the accused to stand cancelled.