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1990 DIGILAW 651 (KAR)

NAGARAJU RAJU SUBBAIAH v. STATE OF KARNATAKA

1990-11-20

B.J.HEGDE, D.P.HIREMATH

body1990
HIREMATH, J. ( 1 ) THE Sessions Court relying on the circumstantial evidence and the extra-judicial confession found the present appellant alone guilty of the offence under Ss. 302 and 201 IPC and sentenced him to suffer imprisonment for life under S. 302 and for a period of three years for the offence under S 201 IPC. Rest of the accused were acquitted. The brief facts are that a-1 Nagaraju is the son of PW-20 Subbaiah who had been employed in Surat in gujarat State. A-1 was also living with him. Puttamma (PW 7) is the mother of a-1. For 10 years before this incident in which Kamala died she was in the keeping of PW 20. The wife of A-1 comes from rayasamudra village in Mandya District of this State. Even A-1 was employed as a gardener along with his father in the garden of a certain Rayon factory. A-1's wife Laxmi at the material time was living at Rayasamudra and round about the time of this incident PW-20 received telegrams about her illness. A-1 left Suratalong with kamala in the month of August 1988. It is the prosecution case that A-1 did not take kindly to this relation between the deceased and PW-20. After A-1 and Kamala came to this village all the accused committed her murder in a crevice called boppanahalii Kanive and buried the body there. A-1 and the deceased were seen last going together by PW-1. Later A-2 went towards that place, but the following day A-1 and A-2 alone returned without the deceased. This arose suspicion in the villagers and even they started suspecting a foul play and the murder of the deceased. On being questioned A-1 made extrajudicial confession before PW-1 and others about he committing her murder and burying the dead body in the Kanive. PW-1 filed complaint at the K. R. Pet Police Station on 26-8-1988 on which a case of murder came to be registered and investigated. Gold Bendole, wrist watch and other belongings of the deceased were found either with A-2 or in his house. ( 2 ) THE Sessions Court having reliedupon and accepting the circumstantial evidence found A-1 alone guilty and convicted and sentenced him as aforesaid. Gold Bendole, wrist watch and other belongings of the deceased were found either with A-2 or in his house. ( 2 ) THE Sessions Court having reliedupon and accepting the circumstantial evidence found A-1 alone guilty and convicted and sentenced him as aforesaid. It is now urged that the circumstances relied upon by the prosecution are wholly insufficient and extra judicial confession relied upon by the prosecution also cannot be considered as voluntary and dependable. ( 3 ) THE evidence of PW 20 the father of A-1 is to the effect that in the month of august 1988 A-1 and Kamala left Surat on hearing the HEWS of the illness of Lakshmi. The telegrams received by PW-20 have been produced at Exs. P-26 to P-28. According to PW-20 they were sent either by a-2 or his son. That they came to K. R. Pet from Surat on 23-8-1988 is deposed to by pw-8 a hotel owner. On 23-8-1988 at about 6-30 AM A-1 and another woman wanted to vacate the room which A-1 had taken the previous night for their halt. He has produced the relevant register at Ex. P-15 and identifies A-1 as well. Thus it was on 23-8-1988 in the morning they left k. R. Pet to Rayasamudra and went to a-2's house. That they lived in A-2's house is evident from the fact that the suit-case that was taken by the deceased to carry her clothes and other belongings of her was found in his house. Even pw-1 has deposed that on 23-8-1988 he had seen Kamala in the village at about 10 am when she had gone to the house of a-2 to stay there with A-1. It was on the evening of 24-8-1988 at about 4 or 4-30 pm that he saw A-1 and Kamala going together by the side of his land towards g. B. Hally i. e. Giddaboppanahalli the native village of A-1. The following day he saw only A-1 and A-2 returning in the morning at about 6am. On they returning the women in the village started talking that A-1 and A-2 had returned without kamala and started suspecting that she might have been killed. The rumour spread in the village in this way by about 12 noon. Again at about 12 noon PW-3 told PW-1 about the extra-judicial confession said to have been made by A-1 before him. The rumour spread in the village in this way by about 12 noon. Again at about 12 noon PW-3 told PW-1 about the extra-judicial confession said to have been made by A-1 before him. At about 8 30 PM when PW-1 and some other villagers questioned A-1 and a-2 they denied the rumour and even A-1 asserted that Kamala has been sent to surat. However PW-1 and others were not prepared to accept this version of A-1. Therefore they pursuaded him to tell the truth and that they wouid not report to the Police, Thereafter A-1 confessed before them saying that he and his father-in-law Sanna devegowda had taken Kamala to Bagemarada Kanive, murdered her and buried her. Thereafter A-1 and A-2 took him and others to that Kanive which is about 1 1/2 miles from the village and it was about 10 PM or 11 PM when they went there. With the help of torches they detected a spot and A-1 and A-2 dug out the body from the pit arid kept above the pit. Thai was the body of Kcmala. By about 3 AM this was over. That was a thursday morning. However at about 8 am on Friday morning he and Mandai parchayat member went to Sjnthebecha- hally and then to K R. Pet and PW-1 filed the complaint as per Ex. P-1. This evidence of PW-1 brings on record the most important circumstances of A-1 and the deceased having last seen together and later A-1 and A-2 alone returning to the village the following morning. It also brings on rtcord the extra-judicial confession made by A-1. That Kamala did die a homicidal death is proved beyond doubt by the evidence of PW-2 the Medical officer of K. R Pet who found as many as six incised wounds on her body and the deceased died on account of these injuries. It is also proved by the evidence of PW-20 and thst of PW-8 the hotelier that A-1 and the deceased had left Surat a day or two prior to 23 8-1988, came to K. R. Pet and then to Rayasamudra. It is also proved by the evidence of PW-20 and thst of PW-8 the hotelier that A-1 and the deceased had left Surat a day or two prior to 23 8-1988, came to K. R. Pet and then to Rayasamudra. It is note worthy that the deceased was an utter stranger to this part of the State, who was a native of surat who had come in contact with PW- 20 and lived with him as his mistress for about 10 years though PW-20 calls her as his second wife. PW-7 is the wife of PW-20 who was living in G. B. Hally when she gave evidence and very curiously she even goes to the extent of stating that her husband, her sons and son-in-law were not residing at Surat. However she admitted that her husband has been living in Surat but pleads ignorance if he had kept a mistress by name Kamala. This perhaps was for obvious reasons and she was cross-examined by the prosecution. Nothing of consequence is elicited in the cross-examination of PW-1 with regard to A-1 and the deceased leaving this village on the evening of 23-8-1988. ( 4 ) ABOUT extra-judicial confession it has been argued that the same has been caused by inducement because PW-1 admitted that if thay had no", given A-1 an assurance that the matter would not be reported to the Police he could not have made any such confession. In this behalf the learned Additional State Public Prosecutor invited our attention to a Bench decision of the Calcutta High tourt in which extra-judicial confession for court's consideration came in similar circumstances. A girl of 5 years was found dead in a tank. The accused was last seen with the girl by the villagers who questioned him about her whereabouts. On being so questioned the accused made extra-judicial confession. The learned Judges observed that the villagers might have exceedtd the limits to some extent out of anger but that did not amount to a threat, inducement or promise proceec ing from a person in authority, creating a belief in the mind of the accused that he might gain some temporal benefit by making the confession within the meaning of S. 24 of the Evidence Act. The confession was followed by the recovery of the deadbody and the recovery was itself corroboration of the confession. The confession was followed by the recovery of the deadbody and the recovery was itself corroboration of the confession. Therefore there was nothing to exclude such an extra-judicial confession. In our view the facts of the instant case are similar to the case'in Safiuddin Mondal v The State before Calcutta High court reported in 1984 Cr L. J. NOC 140 (CAL) at page 54 of 1984 (2) Cr L J. We are in respectful agreement with the observations of the learned Judges of the calcutta High Court and find that even in the instant case PW-1 who was an agriculturist by profession was not a person in authority so as to attract the provisions of s 24 of the Evidence Act. it may be noted that since that afternoon there was rumour in the village that Kamala who had accompanied A-1 was not to be seen and that A-1 and A-2 only had returned. Therefore naturally PW-1 and other villagers who had secured the presence of A-1 were interested to know what had actually happened to that helpless woman. PW-3 no doubt has also spoken about A-1 making extra-judicial confession the same afternoon by taking him near water-pipe and that was not believed by the Sessions court because PW 3 was neither a friend nor a relative of the accused. PW-5 a member of Mandal Panchayat has also spoken about he being present when pw-1 questioned A-1, The learned Sessions Judge while considering the evidence of PW-1 and also certain discrepancies in the dates given by him at para-14 of his judgment observed as follows :"the learned counsel for The defence commented on some discrepancies in the evidence of PW-1 and others and pointed out that P. W-1 had come to know of the death of Smt. Kamala on 24th itself and there is delay in giving complaint to the police etc. In my view these discrepancies are natural which have accured due to confusion or mistake in mentioning the date. In my view these discrepancies are natural which have accured due to confusion or mistake in mentioning the date. The evidence of PW-1 is clear from his examination-in-chief that Smt. Kamala was found going with A-1 on 24th evening, then on the next day in the night they came to know about the murder of Smt. Kamala, then on questioning A-1 he confessed about the murder of Smt. Kamala by him and then lead him and others to the spot where her deadbody was hidden and dug the earth and pointed out the deadbody of smt. Kamala and all this were over by 3 a. m. of the next morning and on 26th afternoon, he gave a complaint to the police. But somehow, a sentence has come in his cross-examination that he knew about the death of Smt. Kamala on 24th itself. One of the fundamental rules of appreciation of evidence is that one stray wrong admission or a stray sentence in evidence should not be given due weight, but the evidence must be read as a whole. Infact PW -1 has lodged the complaint on 26th wherein, he has mentioned that on the previous night A-1 made confession. It is put in black and white at the time when there was no chance for manipulating any case against A-1. Now the witness has given evidence about 8 months later, in the court. Hence some discrepancy in the date should not be taken out of context and the evidence must be read as a whole. In para-12 of the cross-examination he has stated that he had seen A-1 going with Smt. Kamala on 24th. In para-13, he has stated that A-1 and A-2 alone returned on 25th and Smt. Kamala was not with them. It is only on 25th some village women were talking about the missing of Smt. Kamala. Then in para-17 he says that on the night of that day at about 8 or 8. 30 PM they questioned a-1 and A 2 and A-1 confessed about he murdering Smt. Kamala. Then in the last sentence of para 17, he stated that they came to know about the murder of smt. Kamala at about 8 or 8. 30 PM. 30 PM they questioned a-1 and A 2 and A-1 confessed about he murdering Smt. Kamala. Then in the last sentence of para 17, he stated that they came to know about the murder of smt. Kamala at about 8 or 8. 30 PM. This sentence must be read along with the previous sentence which show that he was referring to the question of A-1 and A-2 being enquired about this on 25th and he came to know of the murder at about 8 or 8 30 PM on that day. Hence the contradiction in the date may be due to mistake or confusion. "in our view these observations and reasoning of the Sessions Court are imminently justified while appreciating the evidence. There is absolutely no reason for these witnesses to falsely implicate a-1 because they are not interested in the deceased unduly who was an utter stranger to them nor they are interested against a-1 who was all the while living in Surat. ( 5 ) THE Additional State Public Prosecutor also invited our attention to theconduct of A-1 in denying even the facts which cannot be denied. PW-20 gave evidence that A-1 was living with him and that A-1 had left Surat with the deceased. These facts have been denied by A-1 and even he living in K. R. Pet Hotel was spoken to by P W. 8 Exs. P-30 to P-33 admittedly were seized from his pocket showing that he was an employee in a certain Rayon factory at Baroda. In the face of these established facts the accused made a total denial of he even going to rayasamudra along with the deceased. In the case of Pershadi v U. P. State ( AIR 1957 SC. 211 ) the Supreme Court held that where in a murder charge the accused falsely denied several relevant facts which had been conclusively established, the court would be justified in drawing an adverse inference from this against the accused. The Sessions Court was justified in placing reliance on the prosecution evidence which has established conclusively the circumstances Proving the guilt of a-1. A-1 was last seen with the deceased going towards Kanive in question, he returned without her early in the morning, made extra-judicial confession before pw-1 and others and later led PW-1 and others to the spot where the deadbody was buried. A-1 was last seen with the deceased going towards Kanive in question, he returned without her early in the morning, made extra-judicial confession before pw-1 and others and later led PW-1 and others to the spot where the deadbody was buried. These circumstances have established links in the chain of circumstances to prove the guilt of A-1. The sessions Court found that the evidence against all the other accused and more so against A-2 was not reliable to find them guilty of the said offence. We are in agreement with the conclusion reached by the Sessions Court that A-1 is guilty of committing the murder and also for causing disappearance of evidence of murder by burying the deadbody under s. 201 IPC. We find no reasons to come to a different conclusion. The appeal is liable to be dismissed and is dismissed confirming the conviction and sentence passed against the appellant. Appeal dismissed. --- *** --- .