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2010 DIGILAW 1212 (KAR)

Madhukar v. State of Karnataka

2010-11-25

B.MANOHAR, K.L.MANJUNATH

body2010
JUDGMENT K.L. Manjunath, J : The appellant who has been convicted by the Principal Sessions Judge at Gulbarga in S.C.No.390/2006 dated 10th September 2007 for the offence punishable under Section 302 of IPC, is challenging the judgment of conviction and order of sentence to undergo imprisonment for life and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for 20 days. 2. The facts leading to this case are as under: Brahampur police, based on the complaint of one Laxmi who has been examined as PW-l registered a case against accused for the offence punishable under Section 302 of IPC alleging that he has committed murder of his father-in-law Gangadhar, on the evening of 24.03.2006 by making deceased Gangadhar to consume liquor which was mixed with rat poison and thereafter dashed head of Gangadhar to the wall. As a result of which Gangadhar died. It is the case of the complainant that the deceased Gangadhar had sold land of his mother for Rs. 1,10,000/- and out of which half of the consideration had been given to his mother and remaining amount was lavishly spent by him on liquor. The accused being his son-in-law was also giving company to Gangadhar while consuming alcohol. It is the further case of the prosecution that the accused was demanding money from his father-in-law and used to insist his wife Ambika to ask the deceased to give him money. Since Gangadhar had refused to give money, on 24.03.2006 he purchased liquor and rat poison from the market along with his wife who has been examined as PW-IO and thereafter made Gangadhar to consume liquor which was mixed with the rat poison and compelled his wife Ambika to give the rat poison with the liquor to her father, as she did not agree, accused made an attempt to kill her by using Ilige (coconut scrapper) and immediately she ran away to her village Devan Tagnoor and that on the next day PW-l Laxmi lodged a complaint, as per Ex.P-1 stating that accused has committed murder of his father-in-law, as if he had made confession before the younger brother of the deceased• and also before PW-2 the mother of the deceased, accordingly the charge sheet . was filed. The JMFC., Gulbarga committed the case to the Sessions Court at Gulbarga. 3. On appearance, accused pleaded not guilty and claimed to be tried. was filed. The JMFC., Gulbarga committed the case to the Sessions Court at Gulbarga. 3. On appearance, accused pleaded not guilty and claimed to be tried. In the circumstances in order to bring home the guilt of the accused, prosecution relied upon the evidence of PWs- 1 to 13 and got marked Exs.P1 to 14 and MOs. 1 to 24. 4. The Sessions Court based on the above pleadings, formulated the following points for its consideration: 1. Whether the death of Gangadhar is a homicidal one? 2. Whether accused has committed murder of Gangadhar on 24.03.2006 after 3 p.m. at Santraswadi Gulbarga in the house of Gangadhar? 5. On considering the entire evidence let in by the prosecution, Sessions Court held Point Nos. I and 2 in affirmative and accordingly the accused was convicted for the offence punishable under Section 302 of IPC and he was sentenced to undergo imprisonment for life and to pay a fine of Rs.500/ - in default to undergo S.I. for 20 days by judgment dated 10th September 2007. Aggrieved by the same the resent appeal is filed. 6. We have heard the learned Counsel for the appellant and learned HCGP for the respondent. 7. It is the case of the appellant that the Sessions Court has committed serious error in not appreciating the evidence let in by the prosecution. According to him, the Sessions Court has wrongly came to the conclusion that the prosecution has proved the guilt of the accused without appreciating the evidence let in by the prosecution. According to him, on account of the wrong appreciation of evidence of PWs. 1 to 3 and 10, the Trial Court has convicted the accused, even though he is innocent of the offence. According to him, there is no corroboration in the evidence of PWs. 1 to 3 and 10. Though there are several contradictions and very commission offence by the appellant is doubtful, in the background of the conduct of PWs. 1 to 3 and 10 and in not lodging the complaint immediately after the incident against accused, even though accused all along was with the aforesaid persons till the post-mortem was made by the doctor and also till the funeral. 1 to 3 and 10 and in not lodging the complaint immediately after the incident against accused, even though accused all along was with the aforesaid persons till the post-mortem was made by the doctor and also till the funeral. According to him, the evidence of PW -10 cannot be believed by any Court since she is lady of a doubtful character and that she had illicit relationship with one Ravi Bajantri and that she wanted the accused to go to jail in order to marry Ravi Bajantri. He further contends that if we read the evidence of PW -10 no Court can believe her evidence since. PW -10 is none other than the only daughtel' of the deceased Gangadhar. According to her an attempt was made by the accused to kill her and thereafter she ran away from the place, since accused insisted PW-10 Ambika to make her father to drink the poisoned liquor but she refused to do so. Even though the house of the deceased and the house of PW-1 are very near, without informing PW-1, she went to Devan Tagnoor village running away from Gulbarga and even there she did not reveal the incident to anybody in spite of accused joined her at Devan Tagnoor village within 5 miputes after she reached the village. Similarly, the alleged confession made by the accused before PWs.2 and 3 is also unbelievable since PW-2 has stated in her cross examination that accused did not made such confession before her and that accused had not been to Devan Tagnoor village on the said day. If the evidence ofPW-2 is believed, the extrajudicial confession said to have been made by accused before PW-3 younger brother of the deceased does not arise at all. Since PW3 is also a resident of Devan Tagnoor village. He further contends that the evidence of PW-1 complainant also cannot be believed. According to him she received phone call from one Nagamurthy, her another brother, stating that the deceased Gangadhar is deed and that she was requested to confirm the death of Gangadhar. According to her, she went to the house of the deceased on the same day and the house was locked. On next day morning at about 7 a.m. again she went to the house of deceased and she noticed that the door was unlocked and Gangadhar's body was lying on the cot. 8. According to her, she went to the house of the deceased on the same day and the house was locked. On next day morning at about 7 a.m. again she went to the house of deceased and she noticed that the door was unlocked and Gangadhar's body was lying on the cot. 8. He further contends that according to PW-10 Ambika, the accused went with her to the market and had brought liquor and rat poison. But she has unable to identify he shop from where the liquor as well as rat poison was purchased by accused. Though it is stated that her father consumed beer which was mixed with rat poison, beer or whisky bottle are not sent for laboratory to find out whether the finger prints of the accused were found on the material objects in order to hold the accused guilty. In the circumstances he contends that there is no corroboration in the evidence of PWs.1 to 3 and 10. The learned Sessions Judge without considering the evidence properly, by simply referring to the evidence of each witnesses and without giving cogent reasons to fix the accused in regard to the commission of offence has wrongly convicted the appellant.. In the circumstances, he requests the Court to allow the appeal. 9. Per contra the learned HCGP submits that the evidence let in by the prosecution has been properly appreciated by the Sessions Court and the prosecution has proved beyond all reasonable doubt in regard to the guilt of the accused. In the circumstances, he requests the Court to dismiss the appeal. 10. Having heard the learned Counsel for both parties, the only point that arises for our consideration in this appeal is: "Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt to convict him for the offence punishable under Section 302 of IPC?" 11. Having seen the records and after hearing the learned Counsel for the parties, the homicidal death of Gangadhar is not in dispute. The actual dispute is whether the appellant/accused is responsible for the commission of the offence, on perusal of the entire evidence it is clear that Gangadhar had a criminal background, he had many enemies in his life. He was involved in a murder case and he had also assaulted PW-1 Laxmi his sister. On the complaint of Laxmi he was also in jail for two years. He was involved in a murder case and he had also assaulted PW-1 Laxmi his sister. On the complaint of Laxmi he was also in jail for two years. He used to spend time only by consuming liquor. The motive suggested by the prosecution against the accused is that out of the sale consideration received by Gangadhar Rs.55,000/- was paid to his mother and remaining ~55,OOOIwas with him and that the accused being son-in-law was demanding for money from the deceased and that the accused had informed his wife Ambika that he is going to kill her father by making him to consume rat poison and that he was demanding his wife PW-10 Ambika to get money from her father. Since she refused an attempt was also made to kill her by using Ilagi (coconut scrapper) and that she ran away from the place. In the cross-examination she admits that .her father used to assault her therefore she was not in good terms with her father and that she was hating him. It is the case of the defence that PW-10 had illicit relationship with one Ravi Bajantri and on account of the same the deceased was assaulting her. We have seen the evidence of PW-10 she is the only daughter of the deceased. According to her evidence, after selling land of her grandmother, her father and her husband were together taking liquor and that her husband was demanding money from her father and that the accused had told her to give liquor to her father mixing rat poison. According to her, on the date of death of Gangadhar, she and her husband had gone to market and accused purchased clothes for her and he also purchased alcohol stating that the deceased has requested him to bring liquor and later he also purchased 3 packets of rat poison, Thereafter, both of them went to the house of her father, then her father called the accused to join him to consume liquor. Accordingly the deceased and accused took liquor together, thereafter out of 3 packets of rat poison, accused took two packets from his house and asked her to put the rat poison in a glass in order to kill her father and that he also demanded her to make her father to drink, since she refused to do so, accused made an attempt to assault her and she ran away from the place to her village and accused also followed her. It is further stated by PW-10 that accused informed PW2 the grandmother stating that he has killed his father-in-law. PW-2 after hearing the confession of the accused did not believe his statement stating that he is telling lie. But she further stated that her grandmother without believing the words of the accused told him to go and bury him if he has killed Gangadhar. PW-10 has further stated that she received a phone call on the next day from her paternal aunt PW-1, informing the death of her father. Then she came to Gulbarga along with her uncle, aunt and grandmother and saw the dead body of her father lying on the cot and she states that her husband has committed murder for want of money. In the cross examination she has stated that her father had been to jail in connection of a murder case and he was always consuming liquor and quarreling with others and he had lot of enemies and used to consume liquor with 4 to 5 persons. She admit that at the time of his death her father did not possess any money and she further stated that it is not possible to identify the shops from where the liquor and rat poison were purchased by her husband and that she admits that the house of her father is situated one house away from the house of PW-1 and even she did not inform her aunt PW-1 and even she did not inform her grandmother or her uncle about the accused made her father to consume the poisoned liquor. She has further stated that her another uncle was not in the village. She further stated that even though the accused person was with her, she did not lodge complaint against the accused. The body was sent next day for post-mortem examination. She has further stated that her another uncle was not in the village. She further stated that even though the accused person was with her, she did not lodge complaint against the accused. The body was sent next day for post-mortem examination. The accused was all along with her at her house, she admitted that her husband had come to Devan Tegnoor village 5 minutes after she reached the said village and she further admitted that she did not disclose her husband poisoning her father either to her grandmother uncle's aunt or to anyone. She admits that she is in the habit of keeping rat poison at home. 12. The Sessions Court has convicted the accused relying upon the evidence of PW-10. In this background we have to refer to the evidence of PW-1 the complainant Laxmi, she is the sister of the deceased. According to her there is only one house between the house of Gangadhar and her. She further states in her evidence that she received phone call at about 7 p.m. on 24.03.2006 from her brother Nagmurtny stating that her brother Gangadhar died and he wanted confirmation of the said news. Accordingly she went to the house of Gangadhar which was locked. Thereafter on the next day morning at about 7 a.m. she again visited the house of Gangadhar, she found that the lock was opened and she found that Gangadhar's body lying on the cot and she states that accused was in the town only and that at about 11.30 a.m. PW-10 Ambika came to the house of Gangadhar along with her brother and some villagers. According to her, PW-10 informed that an attempt was made by the accused to assault her by using Ilige. Therefore in such circumstances she feels that accused might have poisoned Gangadhar in order to get the money. In this background we have seen the evidence of PW-10 Ambika she has not stated anything about the assault made on her by the accused either to PW-1 or her uncle. PW-10 also admitted that deceased Gangadhar had no sufficient money to drink liquor, if he had no money to drink, the question of accused committing murder for gain does not arise at all. There is no corroboration between the evidence ofPWs-1 and 10. PW-10 also admitted that deceased Gangadhar had no sufficient money to drink liquor, if he had no money to drink, the question of accused committing murder for gain does not arise at all. There is no corroboration between the evidence ofPWs-1 and 10. According to PW-2, PW-10 Ambik ainformed her about accused committing murder by poisoning her father for money and that an attempt was also made by accused to assault PW -10 Ambika by using Ilige. Therefore, she ran away to the village to inform the same and she further stated that accused had also followed Ambika and told Gangadhar had died but she has not asked the accused in regard to the cause of death of Gangadhar. On the next day morning she received a phone call from her daughter PW- 10 Laxmi. PW2 has not supported the case of the prosecution, she was treated as hostile witness. During the cross examination she has admitted that accused had not gone to the Devan Tagnoor village and did not inform her about the murder of Gangadhar. From the evidence ofPW-2 it is clear that there is no corroboration between the evidence of PW- 10 and herself. It is the specific case of PW-10 Ambika that she did not inform her grandmother or her uncle about the accused committing murder of her father by giving poisoned liquor. Therefore evidence ofPW-2 cannot be believed. PW-3 is Shrishail, one of the brother's of the deceased. According to him, after the death of Gangadhar accused came to the village and informed him that he committed murder of Gangadhar by poisoning and that he had gone to the spot to see the dead boy of Gangadhar. But it is difficult to believe the evidence ofPW-3 since he came to Gulbarga to see the dead body of Gangadhar along with PW -.2 and PW-10 on the next day, when PW-2 says that accused had not been to Devan Tagnoor village. The question of accused confessing before PW2 or PW 3 does not arise at all. Even if such a confession had been made by the accused to PW-3. PW-3 being a younger brother of the deceased would not have kept quite without informing his mother or villagers or lodging complaint before the police immediately. Therefore conduct of PWs. The question of accused confessing before PW2 or PW 3 does not arise at all. Even if such a confession had been made by the accused to PW-3. PW-3 being a younger brother of the deceased would not have kept quite without informing his mother or villagers or lodging complaint before the police immediately. Therefore conduct of PWs. 1 to 3 and 10 would give rise to doubt in fixing the accused to the incident in question. It was easy for the prosecution to take finger prints of the accused and finger prints available on the beer or whisky bottle MOs. 16, 17 and also MO. 18 one steel glass which is said to have been used a to make the deceased to consume the poisoned liquor. There is no explanation offered by the Investigating Officer for not obtaining finger prints of the accused and not obtaining finger prints found on MOs. 16, 17 and 18. Admittedly the deceased had several enemies, he had very criminal background, he had involved in murder case. He had assaulted PW-1 complainant. He was not doing any work and he was always spending time by consuming alcohol, he was always found consuming liquor with 4 to 5 persons. Therefore it is difficult to connect the accused with the commission of offence, in the background of the evidence let in by the prosecution. According to us the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Considering the allegations made against PW-10 that she had illicit relationship with one Ravi Bajantri, throws doubt in regard to her evidence, it has also come in the evidence that house of the deceased is very small room measuring 6ft.x8ft. If accused has quarreled with PW- 10 to compel her to make her father to drink poisoned liquor, will it not be heard by the deceased and whether deceased would consume poisoned liquor served by the appellant when he has heard that it is a poisoned liquor. In addition to that, being the only daughter if an attempt is made to kill her father, would she keep quite without informing her father not to consume the poisoned liquor. In addition to that, being the only daughter if an attempt is made to kill her father, would she keep quite without informing her father not to consume the poisoned liquor. Even if these things are believed to be true for the sake of arguments her subsequent conduct in proceeding to Devan Tagnoor village leaving her father alone at Gulbarga without informing PW-l younger sister of the deceased who is residing next to the house of the deceased and not informing her grandmother or paternal uncle's about the commission of offence committed by the accused. If really accused is responsible for the cause of the death of the deceased, he would not have been in the scene subsequent to the murder of the deceased until complaint is lodged. In the circumstances we are of the opinion the appreciation of evidence by the Court below is perverse. Even though the prosecution has failed to bring home the guilt of the accused, on account of the wrong appreciation of the evidence the Trial Court has convicted the accused for the offence punishable under Section 302 of IPC. Therefore we are of the opinion that the, judgment of conviction and order of sentence are to be set aside. 13. In the result the appeal is allowed. The judgment of conviction and order of sentence passed by the Principal Sessions Judge at Gulbarga dated 11th September 2007 in Sessions Case No.390/2006 is hereby set aside. The appellant/accused is ordered to be set at free forthwith. Considering the assistance made by Sri. Ashok S Kinagi as Amicus Curiae, we quantify his fees at 10,000/- which shall be paid by the State within 12 weeks from the date of receipt of this order.