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2000 DIGILAW 539 (KAR)

NANDAN v. STATE OF KARNATAKA

2000-07-28

B.PADMARAJ, S.R.BANNURMATH

body2000
B. PADMARAJ, J. ( 1 ) HEARD the learned Counsel for the Appellant and the learned SPP for the Respondent-State and carefully perused the case records with their assistance. ( 2 ) THE deceased is one Smt. Valarmathi, aged about 30 years at the time of her death. The appellant/accused and deceased-Smt. Valarmathi had been living together as husband and wife in a house situated at Kuteeramma Koil Street in Cox Town, Bangalore. The appellant/accused was tried for the murder of the abovesaid Valarmathi by committing assault on her with a grinding stone over a quarrel by suspecting her fidelity on the night of 5-9-94 at about 10. 00 p. m. in their abovesaid house, as a result of which she died at about 1. 30 a. m. on the intervening night of 6-9-94 and the Trial Court found him guilty of the said offence under S. 302, I. P. C. Accordingly, the appellant has been convicted of the offence under S. 302, I. P. C. and sentenced to undergo imprisonment for life and also to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo further SI for one month. The appellant has however been acquitted of the offence under S. 201, I. P. C. Hence, this appeal by the convicted accused challenging his conviction under S. 302, I. P. C. and sentence. ( 3 ) P. W.-2, Das is an immediate neighbour of the accused and the deceased. P. W. 5 Smt. Yashodha is his wife. P. W. 4 Pushpa and P. W. 8 Saroja had been residing in the houses situated opposite to the house of the accused and the deceased in the same street. PW-1 is the brother and PW-5 is the sister of the deceased. It is not in dispute that the accused and the deceased had been residing together in a house adjoining to the house of PWs-2 and 5 and they were the immediate neighbours of the accused. In fact, the accused would also admit this fact in his statement under S. 313, Cr. P. C. PW-2 Das has stated that on 5-9-94 at about 9. 00 p. m. in the night, he heard the accused tapping the door of his house and calling the deceased by taking her name to open the door. But the deceased did not open the door. P. C. PW-2 Das has stated that on 5-9-94 at about 9. 00 p. m. in the night, he heard the accused tapping the door of his house and calling the deceased by taking her name to open the door. But the deceased did not open the door. Then, he overheard the sound of breaking open of the door of the house of the accused. On hearing that sound, it is stated that PW-2 came out of his house and he noticed that the door of the house of the accused had been broke open. He also saw the accused assaulting the deceased inside his house and at that time there was a dim light of a small lamp burning in the house. Thinking that it was an usual quarrel between the accused and the deceased, he went back and slept in his house. But again at 1. 00 a. m. on the night of 6-9-94, it is stated that he woke up from his sleep on hearing the sound of someone tapping the door of his house. It is the accused who was actually tapping the door of his house. When PW-2 opened the door, the accused told him that the deceased has been behaving in a peculiar manner and requested him to come and save her. Immediately, both he and his wife PW-5 along with some other neighbours like PW-8 and others went to the house of the accused and attended on the deceased. It is stated that PW-5 and other neighbouring ladies had applied some oil to the deceased and tried to revive her. When PW-2 stated to have seen the deceased on that night, he found that the face of the deceased was appeared to be swollen and the tongue was bitten. He also found that the face of the deceased had been stained with blood. The neighbouring ladies who tried to revive the deceased, ultimately told that the deceased had died. Then, PW-2 stated to have returned to his house. Then in the morning when PW-1, the brother of the deceased, came and enquired with him as to what happened to the deceased, he told him as to what transpired on the previous night. Then, it is stated that a complaint was lodged by PW-1 at about 4. 00 p. m. on 7-9-94 with the Inspector PW-12 at the police station. Then, it is stated that a complaint was lodged by PW-1 at about 4. 00 p. m. on 7-9-94 with the Inspector PW-12 at the police station. He registered the case and took up investigation. During the course of investigation, the Inspector PW-12 arrested the accused and on the information furnished by the accused as per Ex. P-13, he recovered the grinding stone MO-1 from the house of the accused. ( 4 ) THE prosecution had examined at the trial PWs-2, 4, 5 and 8 to prove the occurrence. It also examined PW-1, the complainant to prove his complaint Ex. P-1, the Doctor PW-3 who conducted the post-mortem examination on the dead body of the deceased and opined that the death of the deceased was due to coma as a result of the head injuries sustained by the deceased, PW-6 Muruga, a person from the same locality who noticed the injuries on the dead body, PW-7 Shanti, the sister of the deceased, PW-9 a panch for the recovery of the stone MO-1 under the panchnama Ex. P-15, PW-10 who carried the articles for their chemical examination to the FSL, PW-11 the PSI who was deputed to trace the accused and accordingly he traced the accused and produced him before the Inspector PW-12 and the Investigating Officer PW-12. ( 5 ) THE defence of the accused was that the deceased was suffering from fits and he had taken her for treatment to the hospital. Apart from this, he says that he knows no other things. ( 6 ) THE trial Court on consideration of the entire evidence on record has convicted the accused and sentenced him as stated supra. ( 7 ) LEARNED counsel for the appellant has vehemently contended before us that the deceased was suffering from fits and that under that attack, she fell down and the door of the house fell over her or came in contact with her and she died. He also contended that P. W. 2 Das is not at all an eye-witness to the incident and hence his evidence cannot be relied upon. He further contended that even assuming that the accused came and kicked the door on that night, it is quite likely that the door might have fallen on her and the deceased sustained injuries and died. He further contended that even assuming that the accused came and kicked the door on that night, it is quite likely that the door might have fallen on her and the deceased sustained injuries and died. He, therefore, contended that appellant was in no way responsible for the death of the deceased. He also contended that the case of the prosecution is not free from doubt and hence the benefit of that doubt must go to the accused. He also placed reliance upon a decision of the Madras High Court reported in 1996 Cri LJ 1487 (Sampath v. State ). ( 8 ) AS against this, the learned SPP for the respondent-State has contended that the material placed on record would clearly indicate that none other than the accused had committed the offence alleged against him. He also contended that the very fact that the incident took place in the house of the accused and P. W. 2 and others being the immediate neighbours of the accused and the deceased, would show that they were the natural and probable witnesses and hence when something untoward had transpired during the night in the house of the accused, their witnessing the incident in the manner as narrated by them cannot be said to be unnatural. He, therefore, contended that the finding recorded by the trial Court that the accused is guilty of the offence under S. 302, IPC needs no interference in the appeal. ( 9 ) FROM the medical evidence on record, it is very clear that the deceased had sustained as many as fourteen injuries on her person and the cause of death was due to coma as a result of the head injuries sustained by the deceased. All the injuries found on the deceased were stated to be ante-mortem in nature and according to the Doctor P. W. 3, they could be caused with a stone like MO-1. The evidence of Doctor P. W. 3 coupled with the other circumstances appearing in the case would clearly indicate that the deceased died of violence on the intervening night of 5/6-9-94 in the house of the accused. The evidence of Doctor P. W. 3 coupled with the other circumstances appearing in the case would clearly indicate that the deceased died of violence on the intervening night of 5/6-9-94 in the house of the accused. The defence theory that the deceased had come in contact with the door or the door frame of the house and had sustained injuries appears to be only an afterthought and hence it especially (sic) in the face of the medical evidence of the Doctor P. W. 3 and that apart it has neither been proved nor has been probabilised from the circumstances of the case. ( 10 ) IN order to prove that it is the accused who is responsible for such violence on the deceased, the prosecution mainly depends on the evidence of P. Ws. 2, 4, 5 and 8. It is not in dispute that during the relevant point of time, the accused and the deceased were residing together in the abovesaid house and P. Ws. 2 and 5 were their immediate neighbours. Only a wall separated their two houses. P. W. 2 has clearly stated that on the night of 5-9-94 at about 9. 00 p. m. when the accused returned to his house and tapped the door, the deceased who was then inside the house, did not open the door and ultimately the accused broke open the door and entered the house. Then the accused beat the deceased over a quarrel inside the house, which was witnessed by P. W. 2 in the dim light of a lamp burning inside the house. Thinking that or under the impression that it was usual quarrel between the accused and the deceased, P. W. 2 returned to his house and slept in the house. Then at about 1. 00 a. m. , he heard the sound of tapping at his door and he woke up from his sleep. On opening the door of his house, he found that the accused was tapping the door of his house. The accused sought for his help to save the deceased who was stated to be behaving in a peculiar manner. Then P. W. 2 went along with his wife P. W. 5 and other neighbouring ladies like P. W. 8 and others to the house of the accused. Both P. Ws. The accused sought for his help to save the deceased who was stated to be behaving in a peculiar manner. Then P. W. 2 went along with his wife P. W. 5 and other neighbouring ladies like P. W. 8 and others to the house of the accused. Both P. Ws. 5 and 8 attended on the deceased by applying some oil to her body and tried to revive her. Later they found that the deceased had died. It was found by P. W. 2 that the face of the deceased had been swollen and bleeding. Then he returned to his house along with his wife P. W. 5 and slept during the night. On the next day morning when P. W. 1, the brother of the deceased came to him and enquired with him as to what had transpired during the night, he told him what he had seen and observed on the previous night to P. W. 1. The evidence of P. Ws. 5 and 8 substantially corroborates the evidence of P. W. 2. The fact that P. W. 2 had informed the above occurrence to the brother of the deceased namely P. W. 1 is clearly spoken to by P. W. 1 in Court and it also finds mention in the FIR Ex. P-1. It was, however, sought to be argued on behalf of the appellant that P. W. 1 has not stated that P. W. 2 had informed him about the quarrel. It is no doubt true that P. W. 1 has not explicitly stated as to what all that has been informed by P. W. 2. But the fact that remains to be seen is that when P. W. 1 had contacted P. W. 2 in the morning, he was informed of what transpired during the previous night and on basis of which only he had lodged a complaint with the police. That being so, we find no good ground to discredit the evidence of P. W. 2 only on that basis. P. W. 4 is another neighbour of the accused and the deceased. Her house was situated opposite to the house of the accused and the deceased. She also speaks of the occurrence to the same effect as that of P. W. 2. P. W. 4 is another neighbour of the accused and the deceased. Her house was situated opposite to the house of the accused and the deceased. She also speaks of the occurrence to the same effect as that of P. W. 2. It appears that P. W. 7, the sister of the deceased who was residing at some distance in the same street was informed of the death of the deceased and who in her turn had informed the same to P. W. 1 and accordingly P. W. 1 had come to the house of the deceased. Having come to the house of the deceased, he noticed certain injuries on the dead body of the deceased and felt suspicious. Consequently, he did not allow the dead body to be buried and he asked them to wait till the arrival of the other relatives. In the meanwhile having enquired with P. W. 2 he came to know of the true facts which led to the death of the deceased and thereupon he lodged a complaint. In this context, it is stated that there was some delay in lodging the complaint to the police. Though it is suggested by the defence in the cross-examination of P. W. 12 that on the day when the dead body of the deceased was sought to be buried, the accused was taken away from the spot and detained in the police station, but the accused himself has stated in his statement recorded under S. 313, Cr. P. C. that he was produced on 19-9-94 at about 11. 30 p. m. by P. W. 11 before P. W. 12 and that P. W. 12 caused his arrest and recorded his voluntary statement as per Ex. P-13 and that he was taken from his house. He has nowhere stated in his statement under S. 313, Cr. P. C. that on the day when the dead body was sought to be buried alone, he was apprehended by the police. Therefore, from the materials placed on record it can safely be presumed that the accused was arrested on 19-9-94 at about 11. 30 p. m. in the night. ( 11 ) THE evidence of P. W. 2 and his wife P. W. 5 is quite impressive and convincing. There is no reason for them to falsely implicate the accused in the case. 30 p. m. in the night. ( 11 ) THE evidence of P. W. 2 and his wife P. W. 5 is quite impressive and convincing. There is no reason for them to falsely implicate the accused in the case. P. W. 2 being the immediate neighbour of the accused must have come out of his house on hearing the commotion from the house of the accused. Then he saw the accused beating the deceased over a quarrel. The fact that there was a quarrel on that night between the accused and the deceased is spoken to by P. W. 4 also and the same has been confirmed by P. W. 5. Thinking that it was the usual quarrel between the accused and the deceased as there used to be regular quarrel or frequent quarrels between the accused and the deceased, P. W. 2 went back to his house and slept. But again on being awaken from his sleep by the sound of the accused tapping the door of his house and seeking his help, as a neighbour, he went along with his wife P. W. 5 to the house of the accused. Then his wife P. W. 5 and another neighbour P. W. 8 had attended on the deceased and tried to revive her but ultimately they found her to be dead. P. W. 2 observed certain injuries on the face of the deceased. He also found that the face of the deceased was found to be swollen and was bleeding. We cannot overlook the broad probabilities that P. Ws. 2 and 5 being the immediate neighbours of the accused and the deceased, when they heard the unusual sound of breaking of the door from the house of the accused, the impulsive reaction of a neighbour to go and see what it was. On finding that it was the usual quarrel, he came inside his house and he slept. Again at about 1. 00 a. m. when the appellant came to his house seeking his assistance to save his wife, he showed the neighbourly relation by going to the house of the accused along with his wife P. W. 5. Why should we disbelieve the evidence of P. Ws. 2 and 5 especially when they have no reason to falsely implicate the accused in the case. Why should we disbelieve the evidence of P. Ws. 2 and 5 especially when they have no reason to falsely implicate the accused in the case. After all they were the immediate neighbours of the accused and the deceased and they have discharged their duties as good neighbours. That is to say they have done what a neighbour can do. Therefore, we find no good reason to disbelieve the evidence of P. Ws. 2 and 5. Their evidence would clearly indicate that on that incident night there was a quarrel between the accused and the deceased which resulted in injuries to the deceased. Thus, the death of the deceased was due to violence committed on her by the accused. ( 12 ) BUT then, what is the nature of the offence proved against the accused. The evidence of P. W. 2 would show that when the accused had returned to the house on that relevant night and tapped the door of his house, the deceased who was very much inside the house did not open the door and ultimately the accused had to enter the house by breaking open the door. The evidence of P. W. 2 would further disclose that the accused was quarrelling and beating the deceased. Under the impression that it was an usual quarrel between the accused and the deceased, he went inside the house and slept. He did not, however, notice anything serious at that time. Even the evidence of P. W. 4 would reveal that on that fateful night there was a quarrel between the accused and the deceased in their house. It is pertinent to note that none of these witnesses have stated that they saw the accused assaulting the deceased with the grinding stone MO-1. On the other hand, it was the impression of all the neighbours that it was an usual quarrel between the accused and the deceased. That means they did not observe anything unusual on that night. It is not known as to how and with what material the accused had caused violence on the deceased. The evidence of the neighbours would further show that the accused had called on them requesting to save the deceased. That means they did not observe anything unusual on that night. It is not known as to how and with what material the accused had caused violence on the deceased. The evidence of the neighbours would further show that the accused had called on them requesting to save the deceased. That apart, even the Investigating Officer P. W. 12 would admit that his investigation discloses that on the night of 6-9-94 the accused had taken the deceased to a Doctor to save her life. Even P. W. 8 has admitted in her evidence that the accused had taken the deceased to the hospital on the night of 6-9-94. This conduct on the part of the accused cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die, he would not have alerted his senses to take her for treatment to a doctor and to request his neighbours to do something to save the life of the deceased. He would not have sought the assistance of the neighbours to revive his wife. Therefore, on the facts and circumstances of this case, we are inclined to think that all that the accused thought of was to commit assault on her over a quarrel that ensued between him and the deceased as the deceased did not immediately open the door, but unfortunately the situation seems to have slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, we are persuaded to bring down the offence from first degree murder to culpable homicide not amounting to murder. ( 13 ) WE, therefore, alter the conviction of the appellant/accused from S. 302 to S. 304, Part II of IPC. For the offence under S. 304, Part II, IPC we feel it proper to impose a sentence of rigorous imprisonment for seven years on him in the facts and circumstances of the case. This appeal filed by the appellant/accused is disposed of accordingly. Order accordingly. --- *** --- .