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2011 DIGILAW 63 (KAR)

Vittal Jadav v. State by Brahmava Police Station

2011-01-14

K.N.KESHAVANARAYANA, MANJULA CHELLUR

body2011
Judgment : KESHAVANARAYANA, J. 1. This appeal is directed against the judgment and order dated 28.6.2006 passed by the learned Sessions Judge, udupi in S.C. No.26/05 convicting the appellant/accused for the offence punishable under Section 302, IPC and sentencing him to undergo imprisonment for life and also to pay fine of 5,000/-for the said offence. 2. The appellant was charge sheeted by PW.10-Vijayashankar, the Circle Inspector of Police, Brahmavar Circle, udupi, for the offence punishable under Section 302, IPC inter alia alleging that on 7.3.2004 at about 1.30 p.m. the accused suspecting the fidelity of his wife jayashree, assaulted her with iron rod on her head and other parts of the body as a result of which she sustained severe injuries, to which she later succumbed on 24.3.2004 while taking treatment in Wen Lock hospital at Mangalore. 3. According to the prosecution, PW-4. Mahesh, the son of deceased and the accused, on witnessing the incident, rushed to the house of their landlord PW-3. Jayantha Rao, appraised him about the incident and sought his help for shifting his mother to the hospital. Accordingly PW-3 along with PW-4 came to the scene of occurrence, and shifted the injured to Government Hospital. Udupi in a car, and from there to KMC Hospital, Manipal where she was admitted as in patient. On being informed, the police came to the hospital and recorded statement of PW-4 about the incident as per Ex.P.7 based on which the case came to be registered and investigation was completed. As the accused was absconding he was arrested on 29.4.2005, and after completing investigation charge-sheet was laid. 4. The appellant-accused pleaded not guilty for the charge leveled against him and claimed to be tried. The prosecution in order to bring home the guilt of the accused examined PWs-1 to 11, marked EX.P.1 to P.18 and M.Os.1 to 8. 5. The defence of the accused was one of total denial and that of false implication. 4. The appellant-accused pleaded not guilty for the charge leveled against him and claimed to be tried. The prosecution in order to bring home the guilt of the accused examined PWs-1 to 11, marked EX.P.1 to P.18 and M.Os.1 to 8. 5. The defence of the accused was one of total denial and that of false implication. His further defence, as could be seen from the suggestion put to the prosecution witness in the cross-examination and also his assertion during the examination under Section 313, Cr.P.C., was that on 7.3.2004 when he returned to the house after purchasing vegetables in the shandi (sic) he saw his wife deceased Jayashree and one Ravi, friend of his son PW-4 Mahesh talking very intimately and on seeing this when he questioned the said Ravi, the said Ravi tried to assault him and at that time, the deceased intervened as a result the blow fell on her as such she sustained injuries and the said Ravi escaped from the place. Thus according to the accused he was not responsible for the death of the deceased. 6. The learned Sessions Judge after hearing both sides and on assessment of the oral as well as documentary evidence, by the judgment under appeal, held the appellant, accused guilty of the charge leveled against him holding that the evidence placed by the prosecution on record has established beyond reasonable doubt that the appellant accused was responsible for the homicidal death of the deceased. Consequently, the appellant was convicted of the charge leveled against him and was sentenced to imprisonment for life. Aggrieved by the judgment of conviction and order of sentence, the appellant/accused has presented this appeal through jail authorities. Thereafter Sri.I.B. Pramod Chandra, was appointed by this Court as Amicus Curiae by order dated 3.3.2009. 7. We have heard Sri. I.B. Pramod Chandra, learned Amicus curiae on behalf of the appellant-accused and Sri. Sampangi Ramaiah, learned High Court Government Pleader, appearing for the respondent-State. It is the submission of Sri. Thereafter Sri.I.B. Pramod Chandra, was appointed by this Court as Amicus Curiae by order dated 3.3.2009. 7. We have heard Sri. I.B. Pramod Chandra, learned Amicus curiae on behalf of the appellant-accused and Sri. Sampangi Ramaiah, learned High Court Government Pleader, appearing for the respondent-State. It is the submission of Sri. I.B. Pramod Chandra, that the judgment under appeal is perverse and illegal as the learned Sessions Judge has not properly appreciated the various circumstances brought out in the cross-examination of PW-4 which would clearly indicate that he was no an eyewitness as sought to be made out, therefore, the finding recorded by the learned Sessions Judge that the appellant-accused was responsible for the homicidal death of the deceased is erroneous, as such it is liable to be set aside. It is also his submission that having regard to circumstances brought out on record, the defence plea that one Ravi was responsible for the injuries on the deceased, is lightly probable and the Court below ought to have accepted the defence theory and acquitted the accused,. For this purpose, he sought re-appreciation of the evidence by this Court and to acquit the accused of the charge leveled against him. 8. on the other hand, Sri. Sampangi Ramaiah, learned High Court Government Pleader appearing for the respondent-State sought to justify the judgment under appeal and contended that the judgment under appeal does not suffer from any perversity or illegality as such it does not call for interference by this Court. He further submitted that the learned Sessions Judge has properly appreciated the oral and documentary evidence and has recorded a finding that the appellant accused was responsible for the homicidal death of the deceased, which is sound and reasonable having regard to evidence on record as such the judgment does not call for interference by this Court. 9. In the facts and circumstances of the case, the point that arise for our consideration is. “Whether the judgment under appeal suffer from any perversity or illegality calling for interference by this Court?” 10. 9. In the facts and circumstances of the case, the point that arise for our consideration is. “Whether the judgment under appeal suffer from any perversity or illegality calling for interference by this Court?” 10. According to the case of the prosecution, the appellant-accused was suspecting the fidelity of his wife namely deceased-Jayashree on the ground that she had illicit relationship with one Ravi friend of PW4-Mahesh and it is in that background the accused, on 7.3.2004, while he and his wife were present in the house, assaulted her with an iron rod on the head, face and other parts and thereby caused severe injuries to which she later succumbed. According to the case of the prosecution, PW-4 who is the son of the accused and deceased was the sole eye-witness for the incident of assault by the accused on the deceased. With regard to the motive attributed against the accused and with regard to the actual incident of assault on the deceased the prosecution placed reliance on the testimony of PW-4 and the evidence of PW-3 as corroborative evidence for the evidence of PW-4. 11. As could be seen from the judgment under appeal, the learned Sessions Judge after referring to the medical evidence as well as the evidence of Pws-3 and 4 recorded a finding that the death of the deceased was homicidal. The learned Sessions Judge on the basis of the evidence of PW-4 has held that the evidence of PW-4 is consistent, cogent and natural. It is also opinion of the learned Sessions Judge that there was no reason for PW-4, the son of the accused to falsely implicate the accused. The learned Sessions Judge has rejected the defence plea on the ground that if the defence plea were to be accepted there should have been only one injury on the deceased while according to the medical evidence the deceased had sustained as many as 8 injuries, therefore, the defence plea is not acceptable one. In the light of the cogent and consistent evidence of PW-4, the learned Sessions Judge has recorded the finding of guilt against the accused and consequently convicted the accused for the charge leveled against him. 12. We have bestowed our anxious consideration to the submissions made on both sides. We have closely scrutinised the oral evidence of PWs-3 and 4 in the light of the submissions made by the learned counsel. 12. We have bestowed our anxious consideration to the submissions made on both sides. We have closely scrutinised the oral evidence of PWs-3 and 4 in the light of the submissions made by the learned counsel. 13. Insofar as the nature of death of the deceased being homicidal, there appears to be no serious dispute. The medical evidence on record clearly establishes that soon after the incident the injured Jayashree was taken to the Government Hospital at Udupi where she was examined by CW8-Dr. Juhi Dore, who after examination issued wound certificate as per Ex.P.8. As per the evidence on record, on the advise of CW-8 the injured was taken to KMC Hospital, Manipal where she was examined by Dr. Vineet Agarwal-CW-7 and from there she was shifted to Wen Lock Hospital, Mangalore. The contents of Ex.P.3-wound certificate issued by Wen Lock Hospital, Mangalore and also Ex.P-15-wound certificate issued by KMC Hospital, Manipal would indicate that the deceased has sustained a many as 8 injuries, involving the head and the face,. According to the medical evidence, the deceased was treated as in patient in KMC Hospital till 22.3.2004 and from there she was taken to Wen Lock Hospital, Mangalore where the succumbed to the injuries on 24.3.2004. As per the opinion of the doctor who conducted the autopsy, the death was due to injuries to the vital part namely brain. Even according to the defence plea, the deceased died on account of injuries sustained by her on the head. Therefore, the learned Sessions Judge is justified in holding the death of the deceased as homicidal. 14. The next aspect, which has to be considered, is as to whether the accused was responsible for the homicidal death of the deceased. PW-4 speaks regarding the motive attributed against the accused. It is the contention of the learned counsel for the appellant that the evidence with regard to motive attributed against the accused is not convicting as such, the prosecution has failed to establish the motive. Assuming for the purpose of arguments that the motive attributed against the accused is not proved satisfactorily, having regard to fact that the prosecution relied on direct evidence, motive does not assume significance and it relegates to background. Therefore, it is not necessary for us to consider whether the motive attributed against the accused, is satisfactorily proved or not. 15. Assuming for the purpose of arguments that the motive attributed against the accused is not proved satisfactorily, having regard to fact that the prosecution relied on direct evidence, motive does not assume significance and it relegates to background. Therefore, it is not necessary for us to consider whether the motive attributed against the accused, is satisfactorily proved or not. 15. PW-4 in his oral evidence has reiterated the averments which he had made in the complaint lodged by him at the earliest point of time. According to the prosecution, when the deceased was brought to KMC Hospital, Manipal, the police came there and at that time, PW-4 made statement which was recorded as per Ex.P.7, based on which PW6Devendra, ASI and SHO registered the case in Crime No.16/2004 and took up investigation. Initially, the case was registered for the offence under Section 326, IPC. The medical evidence goes to show that from the time of the incident up to the date of death, the deceased was in coma and she was not in a position to speak. On the receipt of the death memo, the charge was altered to one under Section 302, IPC. The evidence of PW-4 is consistent with the contents of the complainant. According to PW-4 on 6.3.2004, he had gone out of the house for work and since his work could not be completed by evening, he did not return home and on the next day i.e., on 7.3.2004 at about 1.30 p.m., he returned to the village and while he was coming close to the house, he heard screaming sounds from inside the house and immediately when he went inside the house he saw his father assaulting his mother on the head with iron rod and the deceased sustaining severe injuries and falling down on the floor. According to him, on seeing him entering the house, the accused ran away from the house. He has further stated that he immediately went near his mother and since she was not talking, he went to PW-3 who was his landlord and informed him about the incident and sought his help to shift the injured mother to the hospital. Immediately, PWs-3 and 4 came back to the house with a car and shifted the injured to the hospital, PW-4 has been cross-examined at length. 16. Immediately, PWs-3 and 4 came back to the house with a car and shifted the injured to the hospital, PW-4 has been cross-examined at length. 16. PW-3 in his evidence has corroborated the evidence of PW-4 with regard to PW-4 coming to his house and informing him about the accused assaulting the deceased. He has also spoken about immediately he and PW-4 coming to the house of the accused and shifting the injured Jayashree to the hospital in a car. In the cross-examination of PW-4 it is elicited that by the time he came near the door of his house his father ran away from the place. Based on this answer elicited from PW-4, it was contended that PW-4 could not be an eye-witness as such his evidence cannot be the basis for conviction. We do not find any force in this contention. PW-4 being the son of the accused had no reason to falsely implicate his father. It is not the case of the accused that there were any differences of opinion between himself and his son. PW-4 has asserted in the examination-in-chief that when the entired the house he saw the accused assaulting the deceased with an iron road. He has also stated that apart from his father and mother there was no other person in the house. Assuming for the purpose of argument that PW-4 could not see the actual assault on the deceased, s there was no other person other than the accused and the deceased inside the house, except the accused, no other person could inflict injuries to the deceased. At this stage, it is necessary to note the defence plea. According to the accused on that day he had been to shandi to purchase vegetables and when he returned to the house he saw the deceased and Ravi friend of PW-4, talking very intimately and when he questioned Ravi as to why he is visiting his house in his absence, the said Ravi tried to assault him and since the deceased intervened the blow fell on her. If this plea were to be accepted, the deceased ought to have sustained only one injury, as it is not the defence of the accused that said Ravi repeatedly assaulted the deceased. If this plea were to be accepted, the deceased ought to have sustained only one injury, as it is not the defence of the accused that said Ravi repeatedly assaulted the deceased. Having regard to the medical evidence that the deceased had sustained nearly 8 injuries on the body, involving the head and face, the defence plea that the blow intended to be on the accused accidentally fell on the deceased cannot be accepted. In our opinion, the learned Sessions Judge has rightly rejected the defence plea. This plea of defence would fortify the presence of the accused in the house. Therefore, there is no reason for discarding the testimony of PW-4. The immediate conduct of PW-4 would further strengthen his evidence as immediately he rushed to the house of PW-3 and informed him about his father assaulting his mother PW-3 has corroborated this fact in his evidence. If really the accused had not assaulted the deceased, there was no reason for his son PW-4 to go to the house of PW-3 and inform him about the incident. It is also highly unnatural to believe that PW-4 being the son of the accused would spare his friend Ravi and falsely implicate his father and thereby lose both father and mother. Therefore, there is nothing to discard the evidence of PW-4. His evidence would satisfactorily establish that the accused was the person who was responsible for the injury found on the person of the deceases which ultimately led to her death. In addition to this the long abscondency of accused for more than one year would also indicate his guilty mind. Therefore, the Court below is justified in holding that the appellant accused was responsible for the homicidal death of the deceased. The findings recorded by the learned. Sessions Judge in this regard, is sound and reasonable having regard to evidence on record. We find no perversity or illegality in the said finding recorded by the learned Sessions Judge calling for interference by this Court. 17. It is the submission of Sri. The findings recorded by the learned. Sessions Judge in this regard, is sound and reasonable having regard to evidence on record. We find no perversity or illegality in the said finding recorded by the learned Sessions Judge calling for interference by this Court. 17. It is the submission of Sri. Pramod Chandra, that even if the accused is held responsible for the homicidal death of the deceased, having regard to the circumstances brought out on record, especially having regard to the fact that the deceased survived for 16 days after the incident of assault and ultimately died on account of septicemia, the act committed by the accused would not amount to murder as defined under Section 300. IPC but it was culpable homicide not amounting to murder punishable either under Part-I or Part-II of Section 304 of IPC. The learned Sessions Judge has rejected this argument. The reasonings recorded by the learned Sessions Judge in this regard, is sound and reasonable. 18. An act of culpable homicide to constitute murder, need not always be committed with an intention to commit murder. Reading of the circumstances secondly and thirdly of Section 300, IPC would indicate that intention stated therein is only to cause bodily injury and if such bodily injury in the knowledge of the accused is sufficient to cause death, it would be murder within the meaning of circumstance secondly and if such bodily injury is sufficient to cause death in the normal circumstance, it would also be murder within the meaning of circumstance thirdly under Section 300, IPC. In the case on hand, the evidence on record would clearly establish that the appellant-accused repeatedly assaulted the deceased with an iron rod on the vital part namely the head. The intention being mental state of a person, it has to be gathered from the circumstances. The circumstance from which the intention could be gathered are the motive, if any, the nature of the weapon used for commission of offence, the part of the body chosen for assault, the utterance if any, at the time of commission of offence etc. In the case on hand, the nature of the weapon used was iron rod and the part of the body chosen was head, which is a vital part of the body. In the case on hand, the nature of the weapon used was iron rod and the part of the body chosen was head, which is a vital part of the body. The Doctor who conducted the post-mortem examination has opined that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. From all these circumstances, there is no escape from drawing the interference that the accused had an intention to cause the death of the deceased and with that intention he inflicted injuries. Merely because the deceased survived for 16 days after the incident of assault and in the course of the treatment she developed septicemia that by itself does not absolve the accused from the complicity of his act. Further, the fact that the accused had absconded for nearly one year from the date of the incident also shows his guilty mid. Under these circumstances, we find no error in the judgment of the learned Sessions Judge in holding the accused guilty of the offence punishable under Section 302, IPC. Therefore, we do not find any ground to interfere with the judgment of the learned Sessions Judge. 19. Accordingly, the appeal is dismissed. The judgment of conviction dated 28.6.2006, recorded by the learned Sessions Judge, Udupi in S.C.No.26/05 convicting the appellant, is hereby affirmed. Fee of Amicus Curiae is fixed at Rs.7,000/-. The Government shall pay the came.