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2000 DIGILAW 451 (KAR)

KALAIAH ALIAS KALINGA v. STATE OF KARNATAKA

2000-07-04

B.PADMARAJ, S.R.BANNURMATH

body2000
B. PADMARAJ, J. ( 1 ) HEARD the Learned Amicus Curiae Sri Rajsubramanyabhat for the appellant and the Learned SPP for the Respondent-State and carefully perused the case records in detail with their assistance. ( 2 ) THE sole accused is the appellant. The deceased is one Mani alias Mahadevi, aged about 28 years. She was married to the accused about nine years prior to her death. During the relevant time of this incident, the appellant was staying in a hut in K. M. Doddi. The appellant has been convicted by the trial Court for the offence under Section 302, IPC, for having committed the murder of his wife, the deceased Mani on the night of 11-6-1994 at about 2 a. m. in his hut in K. M. Doddi. PW-1 is the brother of the deceased. PW-2 is the mother of the deceased and PW-1. PW-3 is the daughter of the deceased and the accused. PW-4 is the grand-daughter of PW-2 and the accused is her uncle. At the relevant time of this incident, she had come to live with PW-2. PWs. 6 and 7 are the neighbours of the accused and PW-2. They had their respective huts within the close proximity of the huts of the accused and PW-2. PW-9 is the owner of the land wherein PWs. 2, 6 and 7 had been residing by putting up their respective huts and so also the accused. It is the case of the prosecution that about a few days prior to her death, the deceased was ill-treated by the accused and driven out of the house along with her daughter PW-3. Thereupon both the deceased and her daughter PW-3, left with no other alternative, came to stay with PWs. 1 and 2 in their hut. While this was so, it is stated that on that incident night the accused came to the hut of PWs. 1 and 2 and after convincing them that he would look after the deceased well, took her alon gwith him to his hut. PW-3 however stayed back in the hut of PWs. 1 and 2. i. e. to say, she did not accompany her parents to the hut of the accused on that night. The hut of PW-6 was situated at a distance of about 25 feet from the hut of the accused. PW-3 however stayed back in the hut of PWs. 1 and 2. i. e. to say, she did not accompany her parents to the hut of the accused on that night. The hut of PW-6 was situated at a distance of about 25 feet from the hut of the accused. PW-7 was having his hut nearby the hut of PW-6 wherein he was running a hotel in the front portion and was residing in the back portion. The accused was always used to quarrel with the deceased and beat her in a drunken condition. PW-6 a close neighbour of the accused, had also seen the accused taking his wife, the deceased, along with him to his hut on that day at about 9. 30 or 10 p. m. Then on the following morning, when PW-3 went to see her mother in the hut of the accused, she found to her surprise that her mother was lying dead in the house and her father was found to be absent from the house. On seeing the same, PW-3 immediately returned to the hut of PWs. 1 and 2 and told them about what she saw in the hut of the accused. Then both PWs. 1 and 2 went to the hut of the accused and found the deceased lying dead in the hut. They further found that a plastic rope was tied around the neck of the deceased and a portion of her saree was found covering the face of the deceased. They also found that the accused was absent from his hut. Then the complainant PW-1 went to the Police Station and lodged a written complaint with the PSI PW-11 at about 8. 30 a. m. on 11-6-1994. On the basis of the complaint, the PSI PW-11 registered the case and the took up investigation. He deputed PW-10 for guarding the dead body of the deceased at the scene of incident. Thereafter the CPI, PW-13 took up the further investigation of this case from PW-11. he held inquest proceedings over the dead body of the deceased as per Ex. P4 and sent the dead body for its PM examination through PW-10. He also seized from the place of incident MOs. 1 to 4. He also made efforts to search for the accused and so also deputed the ASI PW-12 to trace the accused. he held inquest proceedings over the dead body of the deceased as per Ex. P4 and sent the dead body for its PM examination through PW-10. He also seized from the place of incident MOs. 1 to 4. He also made efforts to search for the accused and so also deputed the ASI PW-12 to trace the accused. Accordingly PW-12 made efforts to trace the accused by visiting Maddur, Mandya, Pandavapura, S. R. Patna and P. B. Manchanahalli. On 17-6-1994 when he was at P. B. Manchanahalli, he learnt through his informant that the accused is in K. R. Pet. Accordingly, he visited the K. R. Pet Police Station and took the accused to his custody and produced him before PW-13 at about 8 p. m. along with his report Ex. P7. PW-12 had seen the accused in K. M. Doddi earlier to 12-6-1994 as he was working as a coolie in K. M. Doddi. PW-13 caused the arrest of the accused. During the course of investigation, the Investigating Officer PW-13 recorded the statements of the material witnesses for the prosecution. After completion of investigation, he submitted the charge sheet against the accused to the Court. ( 3 ) PW-5 is the doctor who conducted the post-mortem examination on the dead body of the deceased on 11-6-1994 between 3 p. m. and 5. 15 p. m. She found a circular ligature mark around the neck of the deceased below the thyroid cartilage, of the size of 1 inch in breadth. An abrasion was also seen over the left side of the cheek and another abrasion over the right side of the cheek. An incised wound of the size of 1" x 1/2" was also found on the lower aspect of the chin. According to the doctor PW-5, the cause of death was due to asphyxia as a result of strangulation. Accordingly, she has issued the PM report as per Ex. P2 on 25-6-1994. The doctor PW-5 examined a plastic rope seized in that case and has opined that such a rope can cause asphyxia and death. She has also opined that such a rope can also cause the ligature mark found on the dead body of the deceased. ( 4 ) PW-8 is a panch for the inquest proceedings held on the dead body of the deceased as per the inquest report Ex. P4. She has also opined that such a rope can also cause the ligature mark found on the dead body of the deceased. ( 4 ) PW-8 is a panch for the inquest proceedings held on the dead body of the deceased as per the inquest report Ex. P4. ( 5 ) PW-10 is the Police Constable who kept watch over the dead body of the deceased at the scene of incident and later took the dead body for PM examination. ( 6 ) THE incident in question took place at about 2 a. m. on the night of 11-7-1994 in the hut of the accused. PW-1 came to know about the dead body of the deceased lying in the hut on the following morning through PW-3 at 7 a. m. and lodged the complaint at 8. 30 a. m. at the police station on the same day. ( 7 ) THE accused when examined under Section 313, Cr. P. C. has admitted that the deceased was his wife and he was residing with his wife in a shed or hut at K. M. Doddi prior to her death. He also admits that PW-3 is his daughter born to the deceased. He would however say that he is not aware whether the dead body of his wife was found in his hut in the morning when PWs. 6 and 7 had visited his hut. Likewise, he would also say that he is not aware when PW-8 had visited his hut, he found that the neck of the dead body of the deceased was tied with a plastic rope and MOs. 1 to 3 and MOs. 11 and 12 were lying nearby the dead body of the deceased in his hut. He also pleads his ignorance about the police visiting his hut and finding the dead body of the deceased in the hut. He did not take any specific defence and on the other hand the defence of the accused was one of a total denial. ( 8 ) THE trial Court on consideration of the entire evidence on record has convicted the appellant for the offence under Section 302, IPC and sentenced him to undergo life imprisonment and also to pay a fine of Rs. 1000/- and in default of which to undergo SI for a further period of 10 days. ( 8 ) THE trial Court on consideration of the entire evidence on record has convicted the appellant for the offence under Section 302, IPC and sentenced him to undergo life imprisonment and also to pay a fine of Rs. 1000/- and in default of which to undergo SI for a further period of 10 days. ( 9 ) AGGRIEVED thereby, the appellant has filed this appeal. ( 10 ) THERE is no eye-witness to the incident. The case of the prosecution mainly rests on the circumstantial evidence. The circumstances sought to be proved by the prosecution are the motive, the last seen together, absconding and the conduct of the accused. ( 11 ) LEARNED Amicus Curiae for the appellant has vehemently contended before us that the law regarding circumstantial evidence is well settled and it is only when the circumstantial evidence satisfy 3 tests namely circumstantial evidence from which an inference of guilt is sought to be drawn must be cogently and firmly established, these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused and the circumstances taken cumulatively should form a chain to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. He contended that none of the 3 tests are satisfied in the case on hand. He therefore contended that the Trial Court which dealt with the prosecution evidence on record has not properly appreicated the evidence on record and hence it needs interference by this Court. ( 12 ) AS against this, the Learned SPP has contended that the circumstantial evidence brought out in the case are consistent with the guilt of the accused. He also contended that if the circumstantial evidence placed on record is examined in its proper perspective, it clearly satisfies the requirements laid down under law. He therefore contended that the judgment and order of conviction of the trial Court needs no interference. ( 13 ) WE would examine the material on record quo each of the aforesaid circumstances. MOTIVE What lead to the killing of the deceased had connection according to the prosecution with the appellants way of living which has been taken exception by the deceased during her lifetime. ( 13 ) WE would examine the material on record quo each of the aforesaid circumstances. MOTIVE What lead to the killing of the deceased had connection according to the prosecution with the appellants way of living which has been taken exception by the deceased during her lifetime. PW-1 the brother of the deceased has stated that a week prior to her death, the deceased was assaulted by the accused when she questioned the accused about squandering the money on drinks and not giving his earnings to her for the maintenance of the family. Under the cross-examination he has stated that he did not give any complaint to the police with regard to the ill-treatment of the accused to the deceased thinking that he may improve himself in course of time. Even PW-2, the mother of the deceased has stated that the deceased came to her hut and told her about the ill-treatment meeted out to her at the hands of the accused. The accused used to beat the deceased every day in drunken condition. She has denied the suggestion that the accused and the deceased were living cordially with each other. PW-3 is the daughter of the accused and the deceased. The deceased had come to live with PWs-1 and 2 in their hut along with her daughter, a few days rprior to her death. In this context PW-3 though aged about 9 years, has stated that every day her father was pushing out her mother from the hut in a drunken condition and when on one such occasion her father had pushed her mother out of the house and asked her to go way from his house, they came to reside with PWs-1 and 2 in their hut. On that day, when her mother had been driven out of the house it was raining. She has further stated that her father used to ill-treat her mother every now and then in a drunken condition. It would therefore appear from the evidence on record that the deceased did not like the way of living of the accused and squandering his earnings in drinking liquors and not providing anything towards the maintenance of the family. Naturally, the accused got irritated with his wife when she used to take exception to his way of living. It would therefore appear from the evidence on record that the deceased did not like the way of living of the accused and squandering his earnings in drinking liquors and not providing anything towards the maintenance of the family. Naturally, the accused got irritated with his wife when she used to take exception to his way of living. Thus, there was no cordiality between the accused and the deceased and their relationship appeared to have been strained. If there was any cordiality between the accused and the deceased, there was absolutely no reason for the deceased to leave the house of her husband and take shelter in the house of her mother along with her daughter PW-3. Even an independent witness like PW-7 says that there used to be frequent quarrel between the accused and the deceased. It has to be remembered that PW-7 was one of the neighbours of the accused. He has further stated that during day time, the accused used to be alright but during the evening, he used to consume liquor and make galata in the night with his wife. So also PW-6, another neighbour has stated that the accused used to quarrel with the deceased when she was demanding money for the maintenance of the family. It has to be seen therefore that the accused had some cause for dislike towards his wife. When the prosecution had succeeded to showing the possibility of some ire for the accused towards the deceased, the invability to further put on record the manner in which such ire would have swelled up in the mind of the accused to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. When the deceased was strongely objecting to the accused squandering away his earnings towards consuming drinks and not providing anything towards the maintenance of the family it would have affected his ego as a husband and it can be said that he would have thought of getting rid of the constant irritator once and for all. We are therefore of the view that the prosecution has been able to estalish the motive for the accused to do away with his wife. DECEASED LAST SEEN ALIVE IN THE COMPANY OF THE ACCUSED The next vital circumstance is that the deceased was last seen alive in the company of the accused. We are therefore of the view that the prosecution has been able to estalish the motive for the accused to do away with his wife. DECEASED LAST SEEN ALIVE IN THE COMPANY OF THE ACCUSED The next vital circumstance is that the deceased was last seen alive in the company of the accused. PW-1 has deposed that on that fateful day at about 10. 00 p. m. in the night when the deceased was staying in their hut along with her daughter PW-3, the accused came to their hut and while promising that henceforth he will look after the deceased well, took the deceased along with him to his hut and to sleep there during the night. PW-3 did not however accompany her parents and she stayed back in the hut of PWs. 1 and 2. The evidences of PWs. 2 and 3 is also to the same effect and it clealy corroborates the evidence of PW-1. Under the cross-examination, PW-3 has further stated that when her father took his mother along with him, she was sleeping in the hut. It is the suggestion made by the defence and the same has been admitted by PW-3 to be true. There is absolutely no reason to discard the above evidences of PWs. 1 to 3 that on the fateful night the accused took the deceased along with him to his hut to sleep there during the night. Their evidence on this aspect would receive substantial support from PW-4, who at that time had come to reside in the hut of PW-2 and also PW-6, a neighbour of the accused. Infact on a specific question being put to this witness in the cross-examination that the accused was not present in his shed during the incident night, he has replied it by saying that he had seen them going to his (accused) hut but not seen them in his hut. To that extent he is a very natural witness and it inspires confidence. It is not in dispute that the hut of the accused, PW-1, 2 and 6 were situated within the close proximity in the land belonging to PW-9. Then on the following morning when PW-3 went to the hut of the accused to see her mother, she found that her mother was lying dead in the hut of the accused and the accused was not to be seen in the house. Then on the following morning when PW-3 went to the hut of the accused to see her mother, she found that her mother was lying dead in the hut of the accused and the accused was not to be seen in the house. Immediately, she returned back and told what she saw in the hut of the accused to PWs. 1 and 2. They also came and saw the deceased lying in the hut of the accused. The evidence of PW-2 would also show that the accused was found to be missing from his hut. Therefore, in our view the prosecution has been able to establish the circumstance regarding the deceased being last seen alive with the accused. When once this circumstance has been established, it is for the accused to show as to how, and when he parted with the company of the deceased. But the accused has absolutely no explanation regarding this. The evidence on record shows that the accused and the deceased went together to the hut of the accused on that relevant night and on the following morning, the deceased was found lying dead in the hut of the accused and that further the accused was missing from the hut. As we have already stated when once this circumstance is established that the accused was with his wife and they both went together to the hut of the accused and when there is no explanation as to when and how, he parted with the company of the deceased, then it lends support or assurance to the story of the prosecution that the accused is the perpetrator of the crime. In this connection, a reference may be made to a decision reported in 1995 SC (Criminal) 704 : ( AIR 1994 SC 978 ) wherein it is held :"in a case of this nature the conduct of the accused is also important. No doubt the prosecution has to prove the case beyond reasonable doubt but when the prosecution has established all the circumstances connecting the accused with a crime and in the absence of any explanation it cannot be said that the conduct of the accused has to be ignored and need not be taken into account. The appellant being the husband, it is within his knowledge as to how he parted his company with the deceased. The appellant being the husband, it is within his knowledge as to how he parted his company with the deceased. The evidence on record shows that he was in the village. When once it is established that he was with his wife at the place of occurrence and when there is no explanation how he parted his company then it lends assurance to the evidence of PW-4 as to the manner of the occurrence. Both the Courts have examined the evidence of PWs. 2, 3, 4 and 5 and have given good reasons for accepting the same. The evidence of these witnesses fully incriminates the appellant with the crime and we see no grounds to interfere". The evidence of PWs. 1 to 3 the inmates of the hut from where the deceased was taken by the accused on the promise of looking after the deceased well, on that relevant night coupled with the evidence of PW-6, a neighbour of the accused, as well as PW-2 and who has nothing against the accused and no reason to speak falsely to implicate the accused, would prove beyond doubt that it was the accused who had taken the deceased from the hut of PWs. 1 and 2 to his hut situated nearby on the pretext of looking after her well henceforth on that relevant night and on the following morning only the dead body of the deceased was found in the hut of the accused and that further the accused was found missing from his hut. Thus, there is a formidable incriminating circumstance against the appellant. The deceased was last seen alive only in the company of the accused. The accused was therefore expected to give a reasonable explanation as to how the accused had died. The accused has offered no explanation for this. It is also not his case that some other person had entered into the house on that relevant night. The evidence of PW-5 would clearly indicate that a ligature mark was found around the neck below the thyroid cartilage and the cause of death as opined by the doctor was due to asphyxia as a result of strangulation. She has further opined that a plastic rope like MO-4, which was found around the neck of the deceased, can cause such ligature mark. She has further opined that a plastic rope like MO-4, which was found around the neck of the deceased, can cause such ligature mark. The deceased had no plausible reason to commit suicide and also the evidence of PW-5 does not in any way indicate it to be a case of suicide. Therefore it was a definite case of homicide. It would be of some relevance to note here itself on that relevant night except the deceased and the accused, no other person was present in the house. ABSCONDANCE The evidence of both PW-2 and PW-3 would reveal that the accused was absent from the house when the dead body was found lying in his hut. The Investigating Officer PW-13 in his evidence has stated that not only he had made efforts to trace the accused, but also deputed the ASI and PW-12 to trace the accused who was absconding from the date of the incident. The evidence of PW-12 would show that he had visited several places in search of the accused and ultimately on 17-6-94, he got information that the accused was at the K. R. Pet Police Station and accordingly he went there and took the accused to his custody and produced him before the Investigating Officer PW-13. Though, the abscondance in this case is only of a short duration, yet it would be of some relevance because ordinarily if the appellant was innocent, he would have been found in his hut consoling his daughter PW-3 and attended to the funeral of the deceased. This circumstance also in our opinion stands proved from the evidence on record. CONDUCT OF THE ACCUSED The deceased was the wife of the accused. Ordinarily she should have lived with the accused. But the materials placed on record would clearly indicate that she was living with her mother PW-2, being driven away by the accused from his hut. Her daughter PW-3 was also living with her. On that relevant night, the accused took his wife along with him from the hut of PW-2 on the promise to look after her well henceforth, but on the following morning only the dead body of the deceased could be found in the hut of the accused and the accused was conspicuously absent from his hut. He could be secured by PW-12 only on 17th. He could be secured by PW-12 only on 17th. If really the accused was innocent, he would have been present in the hut and informed the neighbours and relatives as to how the deceased had died. That apart if really the accused had been away from his hut, he ought to have returned to his hut after coming to know the death of his wife. But the accused besides offering no explanation, was found to be missing or absconding from the date of the occurrence till he was apprehended by the police. ( 14 ) THE incriminating circumstances enumerated above unmistakebly point to the guilt of the accused and such incriminating facts could if at all have been only explained by the accused and by none else, they being personally and exclusively within the knowledge of the accused. In this connection, a reference may also be made to a decision reported in the case of Jalasab Shaikh v. State of Goa in 2000 AIR SCW 111 : ( AIR 2000 SC 571 ) wherein it is held as under : Penal Code (45 of 1860), S. 300 - Murder Circumstantial evidence - Accused alleged to have killed his wife with pick axe Evidence of witnesses that accused, his wife and son were only residing in one room of house belonging to a witness that accused used to return to room in drunken condition, assault his wife and create nuisance - That in the evening the accused and wife had quarrelled - On next morning wife of accused was found dead - That accused ran away and could be traced only after 10 days - Plea raised by accused that he did not reside in the room - Falsified by fact that he did not rush to place of occurrence on knowing of death of wife but had to be searched and arrested by police - False plea also provided the missing link - Accused rightly convicted for murder. " ( 15 ) FOR all these reasons stated supra, we have to hesitation to agree with the findings of the Trial Court holding the appellant to be guilty of the offence u/s. 302, IPC. " ( 15 ) FOR all these reasons stated supra, we have to hesitation to agree with the findings of the Trial Court holding the appellant to be guilty of the offence u/s. 302, IPC. The deceased being the wife of the accused meekly went along with the accused from the hut of PW-2 on account of promise made by the accused that henceforth she will be looked after well apparently reposing faith in him, in view of his close relationship being her own husband. But the accused not only betrayed the confidence reposed in him, but also took advantage of the lon-liness of the happless wife. Hence we find no merit in any of the contentions urged on behalf of the appellant. In the result therefore, this Criminal Appeal filed by the appellant fails and it is accordingly dismissed. We place on record the services rendered by the Learned Amicus Curiae Sri. Rajsubramanyabhat and we fix his fee at Rs. 1,000/- (one thousand only) for the assistance rendered by him in this appeal. Appeal dismissed. --- *** --- .