Research › Search › Judgment

Karnataka High Court · body

2011 DIGILAW 807 (KAR)

Rajesh v. State of Karnataka

2011-08-10

N.ANANDA, V.SURI APPA RAO

body2011
JUDGMENT N. ANANDA, J.—The appellant-accused has filed this appeal against judgment of conviction for an offence punishable under Section 302 I.P.C. 2. We have heard Sri. T.K. Mohan Das, learned counsel for accused and Sri. N.S. Sampangiramaiah, learned Government Pleader for the State. 3. In brief, the case of prosecution and intense relation between some of the prosecution witnesses may be stated thus: Rudresha (since deceased) was the husband of P.W. 2-Gowramma. The accused Rajesha is the elder brother of P.W. 2. P.W. 3-Verikatalakshmamma is the mother of P.W. 2 and accused. P.W. 5-Shivamma is the mother of deceased Rudresha. P.W. 1-Shivaramu is the maternal uncle of deceased Rudresha. 4. Before the marriage, the deceased and P.W. 2-Gowramma had fallen in love. Their marriage was performed on 5.12.2002. P.W. 2 had given birth to a female child, The accused was harassing and ill-treating her to bring dowry from her parental house. On 20.9.2004, P.W. 2 lodged a first Information against the accused, which was registered in Crime No. 226/2004 against deceased for offences punishable under Sections 498A, 506 and 114 I.P.C., by Channapattana Rural police. In connection with the said crime, the deceased was arrested and later he was released on bail. Thereafter, the deceased was living in the house of his parents in Channapattana town. P.W. 2 was living along with her child in her parental house in Appagere Village. The accused who is the elder brother of P.W. 2 had grudge against the deceased since he had harassed and abandoned P.W. 2, who in fact had married the deceased against the wishes of her parents. 5. That on 10.10.2004 at about 8.00 p.m. when the deceased was driving his autorickshaw on Appagere main road, the accused wrongfully restrained him and tried to assault him with a chopper. When the deceased tried to escape from the onslaught of accused, the accused chased him and assaulted him with a chopper and caused his death. Thereafter, the accused surrendered before Channapattana Rural police station and confessed the crime. The Station House Officer made an entry in the station house diary and visited the place of incident to confirm the crime on the same day at 11.00 p.m., P.W. 1 lodged first information and set the law into motion. The bloodstained clothes of the accused were seized. On the information volunteered by the accused, a chopper was seized by the investigating officer. The bloodstained clothes of the accused were seized. On the information volunteered by the accused, a chopper was seized by the investigating officer. 6. The investigating officer visited the place of incident, held inquest and the dead body was subjected to postmortem examination. The Investigating officer recorded statements of witnesses and sent the incriminating articles to Forensic Science Laboratory and submitted charge sheet against the accused. At this juncture, it is necessary to state that in the first Information as per Ex. P1. P.W. 1 had stated involvement of four other persons apart from the accused. The Investigating Officer did not find any evidence about their participation. Therefore, they were given, up and the filial report was filed against the accused. 7. During trial. P.Ws. 1 to 31 were examined and documents as per Ex. P1 to P29. material objects as per MO’s. 1 to 12 were marked. On behalf of the defence one Srinivasamurthy was examined as D.W. 1 and Venkatesh (grand father of accused) was examined as D.W. 2 and documents as per Ex. D1 to D6 were marked. 8. The learned trial Judge on appreciation of evidence and on hearing the learned counsel for parties, held the accused held guilty of an offence punishable under Section 302 I.P.C. 9. Before adverting to appreciation of evidence, it is necessary to state certain facts, which have not been disputed by the accused. The relationship between the accused and deceased and some of the prosecution witnesses as stated supra has not been disputed. The fact that deceased Rudresha died homicidal death at 8.00 p.m. on 10.10.2004 near St. Ann’s school in Appagere village has not been disputed. Even otherwise, the medical evidence given, by P.W. 15-Dr. Malavegowda would reveal that the deceased had suffered as many as 9 incised injuries of different measurements on vital parts. P.W. 15 has opined that the death was due to shock and hemorrhage consequent to injuries to vital parts such as neck. P.W. 15 has opined that the injuries found on the deceased could have been caused with a. sharp edged weapon. Whether the injuries found on the deceased were caused by a long marked as per MO, I will be discussed in the later part of the judgment. 10. As could be seen from the contents of first information and evidence of P.Ws. Whether the injuries found on the deceased were caused by a long marked as per MO, I will be discussed in the later part of the judgment. 10. As could be seen from the contents of first information and evidence of P.Ws. 1 and 9, apart from the first accused, there is reference to other persons namely Rajesha, Thimmaiah Arigadi Chandra, Ramesha and Yogesha as co-accused. 11. P.W. 1 is the maternal uncle of accused and P.W. 9 is the younger brother of P.W. 1. Their houses are situate in Appagere village. P.W. 1 has deposed; that he had seen the accused and deceased at about 1.30 p.m., on 10.10.2004 near Channapattana bus station. The other persons mentioned in the first information were present. When P.W. 1 enquired the deceased, he told P.W. 1 that he was taking the above persons to convene a panchayat to reconcile the differences between the deceased and his wife. P.W. 1 has deposed; that on the same day at 8.30 p.m., he had seen the deceased and other passengers going in an autorickshaw. The evidence of P.W. 9 is more or less similar to the evidence of P.W. 1. P.Ws. 1 and 9 have deposed; that on that day, till 8.00 p.m., the deceased did not. return back. On that day, at about 8.00 p.m., they heard some sound and galata when they were near their house. They proceeded towards St. Anns school, on the way in the torch light they saw the accused along with abovesaid persons namely Rajesha, Thimmaiah, Angadi Chandra, Ramesha and Yogesha, The accused and other persons were holding choppers, long and clubs. After seeing P.Ws. 1 and 9, they ran helter-skelter. P.Ws. 1 and 9 went towards St. Ann’s school and found the dead body of Rudresha with multiple bleeding injuries. Thereafter, P.W. 1 came to Channapattana Rural police station and lodged first information as per Ex. P1. P.W. 1 has not deposed about the presence of other persons near the place of incident, when he had gone in search of the deceased. He has deposed about the presence of the accused. Similarly, P.W. 9 who is stated to had gone to the place of incident has not deposed about the presence of other accused except accused No. 1. 12. He has deposed about the presence of the accused. Similarly, P.W. 9 who is stated to had gone to the place of incident has not deposed about the presence of other accused except accused No. 1. 12. The learned counsel for accused would submit that the version put-forth by the prosecution in the first information and the evidence adduced by the prosecution before the Court is totally inconsistent. The evidence of investigating officer does not disclose as to why the above persons namely Rajesha, Thimmaiah, Angadi Chandra, Ramesha and Yogesha were not implicated in the final report. 13. On careful consideration of evidence of P.Ws. 1 and 9, we find that their houses are situate at a distance of half a kilometer from St. Ann’s school. The evidence of P.W. 1 that he had seen the deceased in the company of accused at 1.30 p.m., on 10.10.2004 near Charmapattana bus station would not lead to an inference that accused, the aforestated persons and deceased were together till the time of incident. It is obvious from the evidence of P.Ws. 1 and 9 that they had reached the place of incident after learning about the incident. Therefore, evidence of P.Ws. 1 and 9 that they had seen the accused and other persons namely Rajesha, Thimmaiah, Angadi Chandra, Ramesha and Yogesha in the torch light, they were armed with weapons and they ran helter-skelter from the place of incident after seeing P.Ws. 1 and 9 cannot be accepted. It, looks probable that P.W. 1 who had seen the deceased in the company of accused and other persons namely Rajesha, Thimmaiah, Angadi Chandra, Ramesha and Yogesha near Chamiapattana bus station at 1.30 p.m., on 10.10.2004, must have formed an opinion that those persons had also joined the accused in the commission of offence. Therefore, non-explanation by the Investigating officer for giving up the above persons in the final report, cannot be a ground to discard the evidence adduced by prosecution. This is not a situation where several accused were tried and some of them were acquitted and some of them were convicted on the basis of same evidence. Therefore, the submission of learned counsel for accused cannot be accepted. 14. P.W. 2 is the wife of deceased. She has deposed that her husband (deceased) was running an autorickshaw. The deceased was demanding her to bring a sum of Rs. 25,000/- as dowry. Therefore, the submission of learned counsel for accused cannot be accepted. 14. P.W. 2 is the wife of deceased. She has deposed that her husband (deceased) was running an autorickshaw. The deceased was demanding her to bring a sum of Rs. 25,000/- as dowry. In that connection the deceased used to harass her. Therefore, she had given complaint against her husband (deceased). The police had arrested her husband. Later he was released on bail. After the deceased was released on bail he was not visiting the parental house of P.W. 1 where she was staying. P.W. 2 gave birth to a female child. 15. Thus from the evidence of P.W. 2 we find the accused had grudge against the deceased as the deceased married his sister P.W. 2 against the wishes of her parents and family members. After the marriage deceased was harassing and ill-treating P.W. 2 to bring dowry. 16. P.W. 10 Narayanappa has deposed: that on the date of incident at about 7.30 p.m. he was sitting in front of his house. The accused and two other persons were going on the road. The accused was holding a chopper. As the accused was conational, P.W. 10 pacified him. On the following day morning P.W. 10 learnt about the murder of deceased. During cross-examination, P.W. 10 has denied the suggestion that he had not seen the accused going on the road with a chopper and he has given false evidence. P.W. 10 did not bear any grudge against the accused. Therefore, we have no reasons to suspect his evidence. 17. P.W. 22 Susheelamma has deposed that she knew the accused and deceased. Her house is after 10-15 houses from the house of accused. On a certain day at 6.30 p.m. (2 years prior to the date of examination of P.W. 22 before Court), the accused was going on the road shouting that the deceased had spoiled the life of his sister (P.W. 2) and that he would finish the deceased. On the same day at about 8.30 p.m. P.W. 22 learnt about the murder of deceased behind church school. During cross-examination P.W. 22 has denied the suggestion, that she was related to the deceased. She has denied the suggestion that she had not heard the accused shouting on the road. She has denied the suggestion that she has given false evidence at the instance of her husband. During cross-examination P.W. 22 has denied the suggestion, that she was related to the deceased. She has denied the suggestion that she had not heard the accused shouting on the road. She has denied the suggestion that she has given false evidence at the instance of her husband. The cross-examination of this witness reveals that she had no enmity against the accused. On the other hand the accused and P.W. 22 are from same village. Therefore, her evidence cannot be suspected. 18. P.W. 28 Dasappa has deposed that from 1.7.2002 to 30.6.2005 he was working as ASI in Channapatna rural police station. On 10.10.2004 at about 9.00 p.m. the accused appeared before him and gave a confessional statement which was entered in the station dairy marked as E-X.P23. P.W. 28 in order to confirm the confessional statement of the accused went near St. Ann’s School and found the dead body of the deceased behind the school and an autorickshaw had been parked near that place. There were multiple injuries on the dead body of the deceased. He returned back to police station and by then P.W. 1 had lodged first information. P.W. 29 gave information to the CPI. P.W. 29 has deposed that when, the accused came to the police station his clothes were stained with blood. He searched the person of accused and found no weapons. He took the accused to custody. During cross-examination P.W. 29 has denied the suggestion that accused had not come to the police station, he had not given any statement and he had not confessed the crime. The evidence of P.W. 28 finds corroboration from the contents of Ex. P23 (the extract of Station House Dairy) wherein it is mentioned that on 10.10.2004 at about. 9.00 p.m. the accused had visited the police station. We have not extracted the confessional statement of the accused recorded in Ex. P23 in view of the judgment of the Supreme Court reported in (1994) 2 SCC 467 (in the case of Bheru Singh vs. State of Rajasthan) and also judgment of the Supreme Court reported in AIR 1986 SC 119 (in the case of Aghnoo Nagesia vs. State of Bihar). 19. In the decision reported in AIR 1994 SC (Criminal) 315 the Supreme Court has held: “17. 19. In the decision reported in AIR 1994 SC (Criminal) 315 the Supreme Court has held: “17. Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The first information report recorded under Section 154 Cr.P.C. is not substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act, in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act.” 20. In the decision reported in AIR 1966 SC 119 the Supreme Court has held: “19. We think that the separability test is misleading and the entire confessional statement is hit by S.25 and save and except as provided by S.27 and save and except the formal part identifying the accused as the maker of report, no part of it could be tendered in evidence”. 21. P.W. 30 Dhamietidra has deposed that from 18.8.2002 to 17.1.2005 he was working as CPI at Channapatna Rural Police Station. On 10.10.2004 at 9.00 p.m. he received a phone call from the ASI about the surrender of the accused in the police station. P.W. 30 Informed the matter to the Dy. SP. Both of them came near St. Ann’s School and saw the dead body of the deceased. They noticed multiple injuries on the dead body and autorickshaw bearing No. 1SA 05 A 5934 bad been parked near the place of incident. P.W. 30 Informed the matter to the Dy. SP. Both of them came near St. Ann’s School and saw the dead body of the deceased. They noticed multiple injuries on the dead body and autorickshaw bearing No. 1SA 05 A 5934 bad been parked near the place of incident. He posted HO 671 to guard the dead body, took up investigation, arrested the accused, seized the blood stained clothes of the deceased. The accused volunteered information to the effect that if he is accompanied he will show the place where he had concealed a long and the shirt of deceased. The admissible portion of voluntary statement of the accused has been marked as Ex. P24. On the following day he took panch witnesses and conducted inquest as per Ex. P19. He also recorded the statements of certain persons and sent the dead body for postmortem examination. The accused lead the investigation officer and panch witnesses to the jowar field of one Suresh and picked a long from the jowar field. During cross-examination P.W. 30 has deposed that by the time he reached police station crime had been registered by the sub inspector of police. He has denied the suggestion that accused had not picked up a long from the jowar field. He has deposed; that the place from where the accused removed a long was at a distance of 100 ft., from the place of incident. 22. P.W. 14 Siddappaji has deposed that on 11.10.2004 he had gone to the place of incident near St. Ann’s School the accused was present. One Siddaramaiah and another Shekar were also present. The accused led the police and witnesses to a jowar field and removed a Long. The police seized the same. During cross-examination nothing is elicited to discredit evidence of P.W. 14. 23. Thus we find that on 10.10.2004 at about, 9.00 p.m. the accused had before the Channapatna rural police. His clothes were stained with blood. On the same day he gave voluntary statement before the Investigation Officer. On the following day the accused led the Investigation Officer and panch witnesses to the jowar field of one Suresh and removed a Long (MO .1) from that jowar field. 24. We have no reasons to suspect the evidence of the investigating officer regarding the appearance of the accused with blood stained clothes at 9.00 p.m. on 10.10.2004 in Channapatua rural police station. 24. We have no reasons to suspect the evidence of the investigating officer regarding the appearance of the accused with blood stained clothes at 9.00 p.m. on 10.10.2004 in Channapatua rural police station. The voluntary statement given fay the accused has led to the recovery of Long (MO I) in the jower field of Suresh. 25. The investigating officer had sent the incriminating articles to FSL and received report as per Ex. P28. The contents of the said report reveal that the clothes of the accused and the Long were stained with human blood. The clothes of the accused viz. shirt, underwear and shoulders of the accused were stained with human blood of ‘O’ group. 26. The learned counsel for the accused would submit that the investigating officer had not collected the sample blood of the accused to role-out that the blood of the accused is of ‘O’ group. 27. It is true that the investigating officer had not collected the sample blood from the accused to confirm, his blood group. The prosecution has relied on several circumstances and the report of FSL indicating that the blood stained clothes of deceased and the blood stained clothes of the accused are of the same group is one of the circumstances. If the prosecution had relied on the contents of FSL report as the sole circumstance to connect the accused with the crime, there would have been some justification in the submission of the learned counsel for accused. 28. From the evidence of P.W. s 28 and 30 we find that accused was arrested at. 9.00 p.m. on 10.10.2004 and he was produced before the committal Magistrate at 10.20 a.m. on 11.10.2004. The accused had not made any complaint about ill treatment by the police. The accused was remanded to judicial custody till 24.10.2004. 29. The accused has examined D.Ws. 1 and 2 to prove that at the time of incident he was in his house. D.W. 1 Srinivas Murthy is a friend of the accused. D.W. 1 has deposed that on the date of incident he was in the house of accused between 6.00 to 9.00 p.m. The accused was also in his house. During cross-examination D.W. 1 has deposed that he was in the house of accused on 10.10.2004. 30. As per evidence of D.W. 1 he was in the house of the accused on 10.10.2004. During cross-examination D.W. 1 has deposed that he was in the house of accused on 10.10.2004. 30. As per evidence of D.W. 1 he was in the house of the accused on 10.10.2004. The incident occurred between 6.00 and 9.00 p.m. Therefore, evidence of P.W. 1 does not provide concrete proof of alibi as the place of incident, is not far away from the house of accused. 31. D.W. 2 Venkateshaiah is the grand lather of the accused. D.W. 2 the grand father of the accused has not deposed about the presence of D.W. 1 in the house of accused. D.W. 2 has deposed that P.W. 2 is grand daughter and sister of accused. The marriage of P.W. 2 was celebrated with the deceased. They were living in the house of D.W. 2. The accused was a painter by occupation. D.W. 2 has deposed that on the date of incident the accused was in the house of D.W. 2. During cross-examination D.W. 2 has deposed that the accused was arrested after two days of murder of deceased. The evidence of D.W. 2 is contrary to the order of remand dated 11.10.2004 made by the learned Magistrate. D.W. 2 has given false evidence that accused was arrested two days after the murder of deceased. In view of the close relationship between the accused and D.W. 2 and the false evidence given by D.W. 2, it is hardly possible to hold that the accused was in the house of D.W. 2 at the time of the incident. Above all, we have the cogent and consistent evidence of investigating officer about the accused surrendering before Channapatna rural police at 9.00 p.m. on 10.10.2004 and his production before the learned Magistrate on the next day. Therefore, we hold that through the evidence of D.Ws. 1 and 2 the accused had putforth false plea of alibi. 32. Thus, to sum up, the prosecution by adducing consistent and cogent evidence has proved that accused had grudge against the deceased as he had married P.W. 2 (the sister of accused) against the wishes of her parents and family members. The accused was harassing her to bring dowry. On the date of incident the accused coming to know about the presence of deceased in Abbigere village, was running on the road with a Long shouting that he would finish the deceased. The accused was harassing her to bring dowry. On the date of incident the accused coming to know about the presence of deceased in Abbigere village, was running on the road with a Long shouting that he would finish the deceased. The death of deceased had taken place around 8.00 p.m. on. 10.10.2004. The accused had appeared before Channapatna rural police at 9.00 p.m. his clothes were stained with blood. The voluntary statement given by the accused had led to recovery of Long (weapon of offence) from the jowar field of one Suresh, which was at a distance of 100 ft., from the place of incident. 33. The FSL report would reveal that the clothes of deceased and the clothes of accused were stained with human blood of ‘O’ group. The accused had made unsuccessful attempt to prove alibi. 34. The above circumstances have been established by the prosecution by cogent and consistent evidence. The evidence adduced by the prosecution in proof of circumstance put forth by the prosecution is compatible with the guilt of the accused and it excludes innocence of accused, Therefore, we hold that the learned trial Judge has not committed any error in holding that accused had committed murder of the deceased. There are no reasons to interfere with the impugned judgment. 35. In the result we dismiss the appeal.