Yallappa vs The State of Karnataka

Rathnakala, J.—This appeal is filed assailing the judgment of sentence and conviction dated 28.11.2012 passed in S.C. No. 50/2011 by the Presiding Officer, FTC-III, Dharward whereby the appellant is convicted for the offence punishable under Section 304-II of IPC and sentenced to undergo rigorous imprisonment for a period of ten years with fine of Rs. 15,000/-, in default, to undergo simple imprisonment for a period of three months.

The petitioner is charge sheeted for the offence punishable under Section 302 of IPC for the murder of his wife Kasturi. The case of the prosecution is, the accused always suspected the fidelity of his wife and used to harass her eversince their marriage. On account of the same, after quarreling with his wife and children, he abandoned the house for four months prior to the incident. In pursuance of his enmity against his wife, on 11.12.2010, at 6.30 p.m., while the deceased was on her way to reach her home along with her friends near the land of CW-30 Channappa Tadkod, accused came from back side and assaulted her with a sickle on her head and other parts of the body. She was shifted to the District Hospital, Dharwad. After first aid, she was shifted KIMS Hospital, Hubli and there she succumbed to the injuries on 30.12.2010. Learned Magistrate after procuring the accused committed the case to the Sessions Court by following due procedure as contemplated under Section 209 of Cr.P.C. Learned Sessions Judge framed the charges for the offence punishable under Section 302 of IPC. The accused pleaded not guilty. The prosecution entered into trial and examined totally 36 witnesses, marked 57 documents and marked 9 material objects as M.O. Nos. 1 to 9. During the examination of the prosecution witnesses, Exs. D-1 and D-2 were marked for the defence. The accused was examined under Section 313 of Cr.P.C. He denied all the allegations appearing in the statements of the prosecution witnesses. However, he opted not to lead defence evidence. Learned Judge after hearing both, found that there was no material for recording evidence under Section 302 of Cr.P.C. However, found guilty for the offence punishable under Section 304-II of IPC. After hearing the accused, he sentenced to undergo rigorous imprisonment for a period of ten years with fine of Rs. 15,000/- in default to pay fine amount, to undergo for further simple imprisonment for a period of three months.

Sri N.D. Gunde, Amicus Curie appointed by this Court submits that the Court below erred in acting on the inconsistent self-contradictory case of the prosecution in convicting the accused. In fact, there was no eyewitness. The so-called eyewitnesses, during the cross-examination have admitted that they have not seen the accused assaulting the deceased. It has also surfaced from the evidence of PW-1/complainant that after the victim was discharged from KIMS Hospital, she was taken to home and at that time, there were lot of visitors to meet her which perhaps resulted in further bleeding. She was over strained due to bleeding and was taken to the hospital, while on treatment she expired. There is no direct link between the accused and death of the deceased. The so-called weapon used for commission of the offence is not seized at the instance or from the possession of the accused. As per the oral evidence of PW-11, accused has produced axe before the police. Without having regard to the background of the petitioner, learned Sessions Judge has imposed rigorous imprisonment of ten years with fine of Rs. 15,000/- which is disproportionate.

As against this, learned High Court Government Pleader submits that PWs-1 and 8 who are very own sons of the deceased and the accused have supported the case of the prosecution. The independent eyewitnesses PWs-9, 11 and 21 who were present at the spot have corroborated the case of the prosecution. The weapon used for commission of the offence is seized under the mahazar and bloodstained cloths of the accused and the deceased are also seized by the Investigating Officer. The complaint at Ex. P-1 is proved by the evidence of PW-1. All the circumstances lead to one and only conclusion that petitioner is the author of the crime. There is medical evidence that the deceased died due to septicemia consequent upon the injuries sustained in the incident. The doctor PW-31, who examined the weapon, has given his opinion that the injuries found on the body of the deceased could have been the result of using the weapon at MO-8. There is overwhelming and clinching evidence of PW-33/the Taluka Executive Magistrate who has recorded the dying declaration of the victim and has categorically implicated her husband for the incident. However, the trial Court has convicted the accused for the offence under Section 304-II of IPC though there was sufficient material for conviction under Section 302 of IPC and circumstance do not warrant interference of this Court and the appeal liable to be rejected.

In the light of the above submission, following point arises for consideration :

"Whether the material available on record justify the conviction recorded by the trial Court for the offence punishable under Section 304 part-II of I.P.C.?"

During the trial, the son of the accused and deceased/the complainant was examined as P.W.1. He is not a direct eyewitness, but a circumstantial witness. As per the statement he was informed by his cousin that the accused is assaulting the deceased, immediately he along with his friends went to the spot, by that time his friend P.W.24 was coming with the injured on his shoulder. She did not speak. She had bleeding injuries on the left side of her face, in the abdomen and the back left thigh and on the waist. At 6.45 p.m. the injured was taken to government hospital at Dharwad and thereafter he lodged a complaint at Ex. P-1. She was discharged on 24.12.2010 since she recovered a little. Since the injuries aggravated on 25.12.2010 she was taken to KIMS Hospital and she expired in the hospital on 30.12.2010. Further PW.1 stated about the abusive conduct of the accused against the deceased. He also stated that the accused, four months prior to the incident, had vowed to finish of one of the family members.

PW-2 is the panch witness to the spot panchanama under which bloodstained mud and sample mud were seized. He corroborated the contents of spot mahazar.

PW-3 is a panch witness under which bloodstained clothes of the deceased were seized. He also corroborated the contentions of mahazar at Ex. P-4.

PW-4 and PW-5 are the witnesses to the mahazar at Ex. P-5 under which the clothes of the deceased after postmortem were seized. Though they admitted their signature on the mahazar, did not corroborate the entire contentions of the mahazar at Ex. P-5.

PW-6 is the witness for Ex. -4 he has supported the contentions of Ex. P-4.

PW-7 is the witness to the inquest panchanama Ex. P-12.

PW-8 is the son of the deceased and the accused. He had testified about the behaviour of the deceased. Though he is not an eyewitness, he has testified about receiving phone call about the incident.

PW-9 is the eyewitness to the incident but turned hostile to the prosecution case.

PW-10 is the brother of the deceased. His sworn testimony is in tune with the PW-1 and PW-8/the children of the deceased.

PW-11 is the star witness i.e., she is the eyewitness who fully supports the case of the prosecution. She testified that on the relevant day on the evening hours, she was also proceeding towards village with the deceased and her friends. On hearing of shouting of the deceased, she went to the spot. She herself removed the axe which was on the back bone of the deceased. She reached the spot after the assault by that the deceased had become unconscious. During the cross-examination, she denied the suggestion that since it was winter season, it was dark. She has seen the accused at the spot with three ladies who were proceeding with the deceased about 1/2 pherlang. She has walked about 1/2 furlong to reach the spot. She carried the axe with her to the house. During her further cross-examination, her statement recorded under Section 161 of Cr.P.C. was confronted and the portion she has denied was not pressed at Ex. D-1.

PW-12 is the student who informed the incident to the son of the deceased on coming to know about the incident from his mother Renavva who was accompanying the deceased.

PW-13 is another eyewitness turned hostile to the prosecution case.

PW-14 is the owner of the land where the deceased was working on that day, he turned hostile to the prosecution case.

PW-15 is the witness to the inquest mahazar.

PW-16 is the mother of the deceased. Though she is a hearsay witness, she has testified that the petitioner was in the habit of assaulting the deceased in his intoxicant condition and she had adviced him not to quarrel.

PW-17 is the brother of the deceased who testified that the accused developed the habit of consuming alcohol and was assaulting his wife. In spite of advices, he did not rectify. The children of the deceased were residing in his house and prosecuting their studies. The deceased also joined her children in his house and they were residing in a room abutting to his house. The accused expressed that he will henceforth take proper care of the family but he was not admitted to the house. In his drunken condition he used to bang the door of the house with an Axe. The witness came to know about the incident through others, immediately he went to the spot and saw the injured and she was shifted by Harish Chudamani and Pavan Gudikatti.

PW-18 is a witness to the seizure mahazar of the weapon i.e., axe/M.O.-8 and mahazar at Ex. P-23. He is also a witness to the mahazar under which bloodstained dhoti of the accused was seized which is at Ex. P-24.

PW-19 is the scribe of complaint Ex. P-1. PWs-20, 21 and 22 are eyewitnesses who turned hostile to the prosecution case. PW-23 is a hearsay witness but has turned hostile. PW-24 is the circumstantial witness who carried the injured on his shoulder after the incident.

PW-25 is the police constable who was deployed to watch the dead body on the night of 30.12.2010 and after the postmortem, handed over the dead body to the complainant. He has dispatched the sealed request to the FSL, Belgavi. PW-26 is the police constable who collected the clothes of the deceased from KIMS Hospital and submitted the same before the Investigating Officer. PW-27 is the then police constable who dispatched the FIR to the Court. PW-28 is the Assistant Engineer, PWD who prepared the spot sketch Ex. P-36.

PW-29 is the then PSI who had received the information and proceeded to the Civil Hospital, Dharwad. On finding that the victim was not in a condition to give statement, he received complaint from her son, registered the case, and submitted the FIR to the Court. He requested the Taluk Magistrate to record dying declaration. He has recorded the further statement of the complainant, conducted spot mahazar at the spot and seized spot string mud and sample mud, prepared the rough sketch of the place of occurrence and also the photos Ex. P-38 to 42. On 13.12.2010, he seized bloodstained clothes of the deceased produced by her on 14.12.2010 during the visit to the KIMS Hospital. Since the deceased was not in a condition to give statement, he requested the Taluka Magistrate to record her dying declaration. After the Tahasildar recording the dying declaration Ex. P-44, he has also recorded the further statement in the presence of the Medical Officer at Ex. P-45. The Medical Officer has signed the said statement.

PW-30 is the PSI who took further investigation from PW-29. After getting information about the death of the deceased, he collected the death memo from the Hospital, requested the Court to incorporate Section 302 of IPC and submitted report to his superiors.

PW-31 is the doctor who treated the victim at Civil Hospital, Dharwad on 11.12.2010. He has given the details of the injuries found on the injured and he has examined the weapon used for the commission of the offence given by the Investigating Officer and has given his opinion as per Ex. P-47. PW-32 is circumstantial witness who was turned hostile.

PW-33 is the Tahasildar who recorded the statement of the victim on 14.12.2010. As per his statement, he recorded the statement in the presence of the doctor at KIMS Hospital between 3.35 p.m. to 3.50 p.m. in the form of questions and answers and has taken her LTM. The statement is at Ex. P-44 and LTM of the deceased is at Ex. P-44(a).

PW-34 is the doctor who conducted postmortem and given his report at Ex. P-48.

PW-35 is the then Police Inspector who conducted the inquest mahazar, recorded the statement of the witness and collected the dying declaration, seized the bloodstained clothes of the deceased and accused under mahazars, arrested the accused with his bloodstained dhoti, seized the dhoti under mahazar recorded his voluntary statement at Ex. P-54 undertaking to show the weapon, recovered the weapon in the presence of panch witnesses under the mahazar at Ex. P-23. After collecting the sketch from the Assistant Engineer, PWD, opinion from the doctor, pending FSL report, he has filed charge sheet. PW-36 is the doctor who treated the deceased at KIMS Hospital and discharged her on 25.11.2012, since the deceased had recovered.

The motive for the incident is established by the evidence of kith and kin of the deceased. The sons/PWs. 1 and 8, 10/brother and mother/16. It emerges from the evidence that the accused was necked out of the family for four months that is a important piece of circumstantial evidence against the accused. The next point for focus is the overt act committed by the accused as such, it is an assault in the evening light in the public place. The evidence of PW.11 is that, this appellant had assaulted the deceased. The presence of this appellant at the spot was disputed during her cross-examination with the suggestion that there was darkness at the time of incident, but she categorically denied the suggestion. Of course, there is some omission in the statement which is marked as Ex. D.1; but the contents of Ex. D.1 do not have any bearing on the incident of assault/overt act on the victim. The complaint/Ex. P.1 is proved by the evidence of PW.24/Harish Chudamani. It is established that immediately after the incident that he carried the injured with his arms and handed over to PW.12 and from there, she was shifted to the hospital. By the evidence of PW.21, the doctor at Dharwad District Hospital, it is established that the injured was given first aid treatment and latter shifted to KIMS. By the evidence of doctor/PW.36 it is proved that the victim was treated and after recovery she was discharged on 24.12.2010 and subsequently, readmitted on 25.12.2010 and expired on 30.12.2010. The weapon used for the commission of the offence is recovered at the instance of the accused under the mahazar/Ex. P.23 and panch witness/PW.18 has corroborated the averments of the mahazaar thereby, Ex. P.23 and also Ex. P.24 under which blood stained Dhoti of the accused was seized. As per the FSL report, it is established that the Dhoti was stained with human blood and Axe along with blood stained clothes of the deceased were of ''A'' Group blood. The nature of the wound found on the dead body matches with the Chopper as per the opinion of the doctor Ex. P.47 given by PW.31. Hence, all the chain of events unequivocally points to one and the only conclusion that the appellant by his overt act caused grievous injuries to the appellant, which culminated in her death due to Septicemia. The learned Sessions Judge rightly recorded the conviction for the offence punishable under Section 304 II of IPC.

Now coming to the proportionality of the sentence, the appellant is aged 60 years. He is in custody since 28.01.2011. He has almost served half of the punishment that is, four years.

Having regard to the circumstances which surface during the investigation. I am of the considered opinion that if the benefit of Probation of Offenders Act is made applicable to the appellant that would meet the ends of justice, which is permissible in respect of convicts of Section 304A of IPC as per the judgment of the Apex Court reported in State of Karnataka Vs. Muddappa, . The petitioner also deserves benefit under Section 4 of Probation of Offenders Act.

Accordingly, the appeal is allowed in part. While confirming the judgment of conviction in respect of offence punishable under Section 304 Part II of IPC recorded by the Presiding Officer, Fast Track Court - III, Dharwad, in S.C. No. 50/2011, with regard to remaining period of sentence to be served and unpaid fine amount, it is ordered that the appellant is given benefit under Section 4 of Probation of Offenders Act.

He shall be released on bail subject to condition that he executes a self-bond for a sum of Rs. 50,000/- for his good behaviour with one surety for the likesum to the satisfaction of the Court below.

The Amicus Curiae fee is fixed at Rs. 5,000/-.

Office is directed to intimate this order to the Court below and also to the Jail Authorities.