Thimma vs State of Karnataka

Mohan M. Shantana Goudar, J.—1. The appeal is directed against the judgment and order of conviction dated 14.10.2011 passed by the Fast Track Court, Kollegal in S.C. No. 3/2010.

By the impugned judgment and order, the Trial Court has convicted the accused for the offences punishable under Sections 302 and 309 of IPC.

Case of the prosecution in brief is that, at about 6.45 p.m. on 26.7.2009, the accused quarreled with his wife/deceased by suspecting the fidelity of her and assaulted her on different parts of the body with the club (M.O. No. 2); consequent upon which, wife of the accused sustained number of injuries all over the body; thereafter, the accused hanged body of the injured to the ceiling of the hut with the help of the saree of the deceased; immediately thereafter, the accused attempted to commit suicide by consuming pesticide; since the accused had consumed pesticide, he had fallen on the floor unconscious; meanwhile PW.1 - wife of the employer of the deceased and the accused called the accused for some work, but the accused did not respond; and hence, PW.1 went near the house of the accused and once again called the accused, but she heard some humming sound from the house of the accused; thus, PW.1 entered the house of the deceased and the accused and found the dead body of the deceased, which was hanging and she also saw the accused fallen on the floor unconscious.

PW.1 immediately informed about the said facts to the neighbours as well as the elders of the village; thereafter, the villagers including PW.1 took a four wheeler and went to Hanur Police Station for lodging the complaint; they reached the Police Station at about 10.30 p.m. on the very day i.e. on 26.7.2009; PW.1 has lodged a complaint as per Ex. P1 before PW.8 - Inspector of Police; the very Inspector PW.8 completed the investigation and laid the chargesheet.

In order to prove its case, the prosecution in all has examined 8 witnesses and got marked 13 exhibits and 8 Material Objects. On behalf of the defence, no witness is examined and no document is marked. The Trial Court on evaluation of the material on record convicted the accused for the offences punishable under Sections 302 and 309 of IPC.

Sri Sheelavant, learned Advocate appearing on behalf of the appellant and Sri Hiremath, learned Amicus Curiae taking us through the material on record submit that the Court below is not justified in convicting the accused; there are no eye witnesses to the incident in question; there is inordinate delay in lodging the complaint by PW.1; nothing is found on record to show as to who shifted the injured accused to the hospital; the circumstance of motive is not proved by the prosecution beyond reasonable doubt; there is no material to show as to, from which place the accused got the pesticide. They further submitted that the reasons assigned and the conclusion arrived at by the Trial Court are improper and incorrect.

Per contra, Sri Nawaz, learned SPP argued in support of the impugned judgment of the Court below.

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

"(i) Motive for commission of offence;

(ii) The accused and the deceased were last seen together just prior to the incident;

(iii) The accused had fallen in the very hut wherein, the dead body was found and the accused had consumed pesticide and was unconscious;

(iv) The death of the deceased was homicidal in nature;

(v) The deceased died in the matrimonial house, wherein the accused and the deceased were living during relevant point of time;

(vi) The blood stained club used for the commission of offence by the accused is seized from the spot;

(vii) The accused made extra-judicial confession before the Doctor - PW.7 while he was admitted to the hospital and the same was recorded by the Doctor - PW.7 as a history given by the accused.

(viii) The false explanation tendered by the accused with regard to his role in the incident in question;

(ix) M.O. Nos. 7 and 8 - blood stained shirt and lungi worn by the accused were recovered at the instance of the accused;"

As mentioned supra, the complaint came to be lodged by PW.1 as per Ex. P1. PW.1 is none other than the wife of the employer of the accused as well as the deceased. The complaint reveals that the accused and the deceased were introduced to PW.1 and her husband by one Mr. Rangaiah about 15 days prior to the incident; since said Rangaiah had requested PW.1 and her husband for allowing the accused and the deceased to work as coolies in their agricultural land, PW.1 and her husband permitted them to work in their garden land; the accused and the deceased were provided with residential hut in which, they started living about 15 days prior to the incident. The complaint further discloses that the complainant came to know that the deceased had left the company of the accused for years together and very recently, she had come back and joined the company of the accused and only for the said reason, the accused has committed the murder of the deceased. The aspect of motive as found in complaint - Ex. P1 is deposed by PW.1/complainant before the Court below. She has reiterated that the deceased had left the company of the accused and was started living with another person in Tamil Nadu State. She has further deposed that there used to be frequent quarrel between the husband and wife, inasmuch as the accused was suspecting the fidelity of the deceased; though PW.1 was subjected to searching cross-examination, nothing worth is elicited from her for disbelieving her version with regard to motive; the suggestion put-forth by the defence that the accused and the deceased were living amicably is denied by PW.1.

Thus, in our considered opinion, the Trial Court is justified in concluding that the circumstance of motive is proved by the prosecution beyond reasonable doubt. Moreover, PW.1 was the wife of the employer of the accused as well as the deceased. Her house was situated just near the hut of the accused and the deceased and she would be in a better position to know about the internal matters of the accused and the deceased.

PW.1 has further deposed about the last seen circumstance also. The averments made in the complaint - Ex. P1 as well as the evidence of PW.1 clearly reveal that on the date of incident, the accused and the deceased worked in the garden land of PW.1 and thereafter, both of them went to their house. Within 15 minutes thereafter, the incident has taken place. Hence, it is clear from the evidence of PW.1 as well as the averments made in the complaint that both the deceased and the accused were found together, just 15 minutes prior to the incident in question and they went together to their house. The evidence of PW.1 fully supports her version as found in Ex. P1 with regard to the last seen circumstance. The defence was not able to discredit the evidence of PW.1 and the point of last seen circumstance also.

It is not in dispute that the accused had fallen unconscious in his hut and that he had consumed pesticide. It is also not in dispute that the dead body of the deceased was found in hanging position. There is no cross-examination by the accused on that aspect of the matter.

The hut of the accused and the deceased was a small hut, wherein only they both were living. Since the accused had fallen unconscious that too by consuming pesticide, it cannot be disputed that the accused was also present at the time of incident in question.

The evidence of PW.5 - Doctor, who conducted post mortem examination, discloses that the death of the deceased is homicidal in nature. The post mortem report Ex. P4 and the evidence of the Doctor - PW.5 would clearly reveal that the injured had sustained as many as five injuries; the injuries were found on the fore head and on the chest. The medical evidence further discloses that the fracture of 2nd, 3rd and 4th ribs on the left chest and there was haemorrhage seen in the middle of parietal region. The Doctor has opined that the cause of death is due to haemorrhage and shock as a result of multiple injuries sustained (head injury and fracture of ribs).

From the aforementioned medical evidence, the prosecution has proved conclusively that the death of the deceased is homicidal in nature, which means it is not either accident or suicidal.

As mentioned supra, only the accused and deceased were living in the hut situated in the garden land of PW.1. There is nothing on record to show that the third party has entered the hut of the deceased and committed her murder. Hence, the learned SPP is justified in arguing that after committing the murder of the deceased by assaulting her with a club, the accused must have hanged the dead body.

Be that as it may, the fact remains that the deceased died homicidal death that too, when only the deceased and the accused were living in the hut.

M.O. No. 2 - club used for commission of offence is seized from the spot. The club was blood stained and the same was sent to Forensic Science Laboratory. Though there is no Serologist report relating to grouping of blood, the Forensic Science Laboratory report reveals that the club, which was seized from the spot was blood stained.

Immediately after the incident, the accused was shifted to Kamagere Holy Cross Hospital, Kollegal Taluk. PW.8 - Sub-Inspector of Police has deposed that he visited the spot and shifted the accused to the hospital in the Police Department jeep. The accused was treated by the Doctor - PW.7 at 9.40 p.m. On examination of the accused, the Doctor has clarified that the body of the accused was stained with blood to certain extent; and that the accused was in unconscious position. The said Doctor has recorded the history as given by the accused while admitting him to the hospital. The history recorded by PW.7 - Doctor discloses that there was quarrel between the accused and the deceased and after quarrel with the deceased, the accused consumed pesticide. Thus, it is clear that the accused made extra-judicial confession before the Doctor and the same was written by the Doctor in his records as is clear from the document - Ex. P7. The said document discloses as to when the victim was brought to the hospital and what was his condition. The prescription of the Doctor is also found in the said document. The very document reveals that the quarrel took place between the accused and the deceased and thereafter, the accused consumed pesticide. The history as given by the accused is fully implicates him in the crime. Though we are not relying upon the history alone for coming to the conclusion, the same can be safely taken as one of the circumstances against the accused.

The accused has tried to give false explanation about the incident in question during the course of recording the statement under Section 313 of Cr.P.C. The accused has submitted the written statement wherein, he has stated that he had left the house by 6.00 p.m. and came back at about 8.30 p.m. and by that time, the deceased was murdered; seeing his wife with bleeding injuries, he became unconscious and fell down. This explanation is falsified by the evidence of PW.7 - Doctor as well as the evidence of PW.1. As mentioned supra, PW.7 - Doctor has deposed that he treated the accused and that the accused has consumed pesticide. It is further deposed by the said Doctor that in case, if the accused had not been given treatment, he would have lost his life. Even the evidence of PW.1 discloses that the accused had fallen on the ground in semi-conscious stage and the froth was oozing out from his mouth. Thus, it is clear that the explanation given by the accused is fully false. It is by now well settled that in case, if the accused has given false explanation about the incident in question, the same would be an additional link in the chain of circumstances.

The last circumstance is recovery of blood stained clothes of the accused at his instance. The Police have recovered the blood stained clothes of the accused (M.O. Nos. 7 and 8) based on his voluntary statement (Ex. P10). The blood stained clothes of the accused were also sent to the Forensic Science Laboratory along with the blood stained club - M.O. No. 2. The blood stained clothes of the accused are also found stained with human blood. If really the accused is innocent and has not assaulted the deceased with club, who sustained bleeding injuries, the clothes of the accused would not have been stained with human blood.

The aforementioned discussion of ours would lead to the only conclusion that the accused has committed the offence of murder and thereafter, he tried to commit suicide. The prosecution has proved all the circumstances relied upon by it, beyond reasonable doubt. Since all the circumstances are proved by the prosecution beyond reasonable doubt, in our considered opinion, the chain of the circumstances, so complete that it would not leave any scope for the accused to escape. All the circumstances, so proved will point towards the guilt of the accused. We also find that the reasons assigned and the conclusion arrived at by the Trial Court are just and proper.

Hence, no interference is called for. Appeal fails and the same stands dismissed accordingly.

We place on record the valuable assistance rendered by Sri Vageesh Hiremath, learned Amicus Curiae. The registry is directed to pay Rs. 10,000/- (Rupees Ten Thousand Only) to the learned Amicus Curiae, as honorarium.