Suladahalli Nagappa vs State

Mohan M. Shantana Goudar, J—The Judgment & Order of conviction and sentence dated 7th April 2010 passed by the Prl. District & Sessions Judge, Davangere in Sessions Case No. 55/2009 is the subject matter of this appeal. By the impugned Judgment, the trial Court has convicted the accused for the offence under Section 302 of IPC.

Case of the prosecution in brief is that the deceased Hiriyamma is the second wife of the accused; Smt. Gonemma (PW. 9) is the first wife of the accused; after the second marriage of the accused with the deceased, the first wife of the accused started residing separately in a different village and she did not have contact with the accused; PWs. 2, 3 and 4 are children of the deceased and accused; since the family had got a small hut having a thatched roof measuring about 1 Vi feet x 12 Vi feet, PWs. 2 and 4 used to have lunch and dinner in the house and thereafter used to sleep in the house of PW. 3 - Kariyamma during night; PW. 5 is the husband of PW. 3 i.e., son-in-law of the deceased and the accused; during the night of 24.1.2009, PWs. 2 and 4 had their dinner in the hut alongwith their parents and thereafter they went to the house of PW. 3 - Kariyamma (sister of PWs. 2 and 4) to sleep; they came to the hut on the early hours of 25.1.2009 and to their dismay, they saw the dead body of the deceased with bleeding injuries on the head; a size stone was lying near the dead body; a complaint came to be lodged by PW. 2 (son of the deceased and the accused) as per Ex. P3 in Jagalur Police Station, which came to be registered by PW. 12 (Assistant Sub-Inspector) in Crime No. 18/2009; PW. 12 sent the first information report as per Ex. P7 to the jurisdictional Magistrate; PW. 13 - Inspector of Police completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 13 witnesses and got marked 11 Exhibits and 8 Material Objects. On behalf of the defence, no witness is examined. As aforementioned, the trial Court convicted the accused for the offence under Section 302 of IPC.

Heard Smt. Budrunnisa, learned advocate appearing on behalf of the appellant and Sri Chetan Desai, learned High Court Government Pleader for the respondent - State and perused the records.

There are no eye witnesses to the incident in question. The case rests on circumstantial evidence. The prosecution has relied upon the following circumstances:

Homicidal death has occurred during the mid-night intervening between 24.1.2009 and 25.1.2009.

Motive for the accused to commit the offence.

The deceased was last seen with the accused during the night of 24.1.2009.

Abscondence of the accused for three months and accused did not attend the last rites of the deceased and it is not complained about her death to anybody.

Non-explanation of the accused; Accused has not explained as to how the homicidal death of the deceased had occurred in the mid-night in the hut.

PW. 1 is the witness for inquest panchanama -Ex. P1 and spot mahazar - Ex. P2. Mos. 1 to 5 were seized from the spot.

PWs. 2, 3 and 4 are the children of the deceased and the accused. Among them, PW. 3 is the married daughter and in whose house PWs. 2 and 4 used to sleep during night.

PW. 5 is the son-in-law of the deceased and the accused. He is the husband of PW. 3. He has also deposed about the motive and apprehension of the accused at Mathur bus station.

PWs. 6 and 7 have turned hostile to the case of the prosecution. Their evidence is of no use either to the prosecution or to the defence.

PW. 8 has deposed about the motive. According to him, the accused was suspecting the fidelity of the deceased and that the accused was suspecting that the deceased was having illicit relationship with him (PW. 8).

PW. 9 is the first wife of the accused.

PW. 10 is the relative of the accused. She has deposed about the motive as well as about the accused visiting her house after two months of the incident.

PW. 11 is the doctor. He conducted autopsy over the dead body of the deceased. Autopsy report is at Ex. P5.

PW. 12 is the Assistant Sub-Inspector of Police. He received the complaint and registered the crime and sent the first information report to the jurisdictional Magistrate.

PW. 13 is the Investigating Officer. He completed the investigation and laid the charge sheet.

It is not in dispute that the deceased died of homicidal death. The defence does not dispute the same. Even otherwise, the post-mortem report - Ex. P5 and the evidence of the doctor - PW. 11 clearly reveal that it is the case of homicidal death. The medical records reveal that the death was due to intra-cranial hemorrhagic secondary severe blow over the left side of the skull which lead to fracture of temporal bone base of the skull. The scene of offence panchanama as well as the evidence of PWs. 2 to 4 and the evidence of the doctor clearly reveal that the deceased has sustained bleeding injuries on the head. The death was instantaneous. Thus it is a clear case of homicidal death.

PWs. 2, 3, 4 and 5 have deposed about the motive for commission of the offence and the last seen circumstance. PWs. 2 to 4 are none other than children of the deceased and the accused. PW. 5 is the son-in-law of the deceased and the accused. All these witnesses have consistently deposed that the accused was suspecting the fidelity of the deceased. They have also deposed that the accused had only 2 acres of land and the deceased had got the land transferred in the name of PW. 2 (son of the accused and the deceased). After transferring the land in favour of PW. 2, the accused had left the house for about 2 to 3 years. He came back once again and started living with the deceased prior to the incident in question. However the accused used to quarrel with the deceased frequently and harass her both physically and mentally on the ground that she got the land transferred in the name of PW. 2 etc.,

PWs. 2, 3, 4 and 5 have cogently deposed before the Court that the thatched roof hut wherein the deceased and the accused were living was very small, which could hardly accommodate two persons; accused and the deceased did not have the house of their own, but they intended to construct a house; since there was no place available for PWs. 2 and 4 to sleep in the hut, they used to have dinner in the hut alongwith the parents and sleep in the house of their sister - Kariyamma (PW. 3) during night; during the night of 24.1.2009 also, PWs. 2 and 4 had dinner in the hut as usual and came to the house of PW. 3 for sleeping; At the time when PWs. 2 and 4 left the hut after dinner, the accused and the deceased only were residing in the said hut. The evidence of PWs. 2 and 4 is supported by the evidence of PW. 3 and 5, in whose house PWs. 2 and 4 used to sleep. We find that the evidence of PWs. 2, 3, 4 and 5 is consistent, cogent and reliable. There is no reason as to why they should tell falsehood against the accused or in favour of the prosecution if really PWs. 2 and 4 did not sleep in the house of Kariyamma. So also there is no reason as to why PWs. 2 and 4 should speak falsehood against the accused if really they have not seen the accused in the hut during the night of 24.1.2009. The evidence of these witnesses clearly proves the motive on the part of the accused to commit the crime. So also it proves the last seen theory relied upon by the prosecution.

It is not in dispute that the accused was apprehended after three months. It is also not in dispute that the accused left the village immediately after the incident. He was not found in the village since the morning of 25.1.2009. He was not found in the hut even when PWs. 2 and 4 came to the hut on the early hours of 25.1.2009. Thus the accused had left the hut abandoning the dead body of his wife. The evidence of PW. 10 (the relative of the accused) would clearly reveal that the accused had come to her house after two months of the incident. But PW. 10 did not entertain the accused and he was sent out of her house. Ultimately, the accused was arrested on 5.4.2009 at Mathur bus station. Hence it is clear that the prosecution has proved the circumstance of abscondence of the accused also against the accused.

Added to it, the non-explanation by the accused about the death of the deceased in the matrimonial home supplies an additional link in the chain of circumstances. Since the incident has taken place in the mid-night intervening between 24.1.2009 and 25.1.2009 and as the accused and the deceased were only residing in the hut during the relevant point of time, it is incumbent on the part of the accused to explain as to when he parted the company of the deceased and as to how the homicidal death of the deceased has taken place. Since he is the only person who has slept in the hut except the deceased, it is for him to explain as to how the incident has taken place. The accused has tried to explain his absence in the hut on the date of the incident in his statement recorded under Section 313 Cr.PC by stating that he was not in station and that he had been to Kandur on that day since he was assaulted by his son. There is no cogent material to support the explanation of the accused. On the other hand, consistent, cogent and voluminous evidence on record clearly reveals that the accused was very much present in the house on the night of 24.1.2009 and had dinner with his children - PWs. 2 and 4 and slept alongwith the deceased. The false explanation of the accused given by him in his statement recorded under Section 313 Cr.PC supplies an additional link in the chain of circumstances.

The conduct of the accused in not intimating about the death of the deceased to anybody including his children is also an additional circumstance against the accused. As the ordinary prudent husband, he would have taken care of death of the deceased. He being the elder in the family, he ought to have informed about the death of the deceased immediately after the incident to all his children who were very much in the village. Thus the conduct of the accused in fleeing away from scene is highly unnatural and the same is an additional circumstance. Since all the circumstances relied upon by the prosecution are proved beyond reasonable doubt and as all the circumstances so proved form a chain of circumstances which does not give any scope for the accused to flee from justice, the accused is liable to be convicted.

The evidence on record reveals that the accused has got grievance against the deceased inasmuch as the accused was thinking that the deceased was not loyal to him and further the accused was suspecting her fidelity. He had also grievance against the deceased on the ground that she got 2 acres of land transferred in the name of PW. 2 without his consent and consequently he became homeless. In that regard, the accused had left the village for about 2 to 3 years prior to the incident. But he has come back to the village subsequently. On the aforementioned factors, the quarrels used to take place between the accused and the deceased frequently. Despite panchayath, the accused did not stop quarreling. Based on these facts and circumstances, the defence advocate is justified in submitting before the Court that during the relevant night also, the accused must have quarreled with the deceased on the very ground and due to sudden and grave provocation, the accused must have taken law into his hands. The accused was aged about 65 years at the time of the incident. He must have been aged about 71 years as of now. Having regard to the aforementioned facts and circumstances of the case, we are of the opinion that the accused needs to be convicted for the offence punishable under Section 304 Part II of IPC inasmuch as he might have committed the offence while he was deprived of power of self control by grave and sudden provocation.

Having heard the learned advocates on both sides on the question of sentence, we are of the view that the interest of justice will be met with if the accused is sentenced to undergo imprisonment for seven years. He has already undergone about six years of imprisonment. He is aged about 71 years as of now. No useful purpose will be served in prolonging imprisonment of the accused for a longer period.

Accordingly, following order is made;

The impugned Judgment and Order of conviction passed by the trial Court convicting the accused for the offence under Section 302 of IPC stands set aside. Instead the accused is convicted for the offence under Section 304 Part II of IPC.

Accused/appellant is sentenced to undergo imprisonment for seven years.

Accused is entitled to the benefit of set off as contemplated under Section 428 of Cr.P.C.

Appeal is allowed in part accordingly.