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2011 DIGILAW 848 (KAR)

Parasappa Sabanna Madar v. State of Karnataka

2011-08-24

ARALI NAGARAJ, H.BILLAPPA

body2011
JUDGMENT H. BILLAPPA, J.—This jail appeal is by the only accused, in Sessions Case No. 142/2010 on the file of the learned District and Sessions Judge, Bagalkot, (herein after referred to as “Trial Court” for short). 2. The appellant-accused has challenged in this appeal legality and the correctness of the Judgment and Order of conviction and sentence dated 5.10.2010 passed in the said case convicting him for the offences under Section 498A and 302 IPC and sentencing him to undergo imprisonment for 1½ years for the offences under Section 498A IPC and to pay a fine of Rs.6,000/- in default to undergo imprisonment for 3 months and also sentencing him to undergo life imprisonment for the offence under Section 302 IPC and to pay fine of Rs.5,000/- with default sentence of further imprisonment for 6 months. 3. Stated in brief, the case of the prosecution as alleged in the complaint (Ex. P1) dated 26.9.2009, filed by the one Hanamanth s/o Chandrappa Maddamanl, resident of Honnihala village, Taluk Bilgi, District. Bagalkot is as under: (i) The Complainant has been residing at he said village along with his wife Sangavva arid his son Ramanna. His only daughter Suit. Kasturavva was given in marriage to the appellant-accused Parasappa. The deceased gave birth to 3 children, viz., Duragappa, Shivappa and Ravi. Since the past 8 years, the accused has been staying in the same village, in a house constructed at Janata plot, nearby the residential house o f the complainant. (ii) The deceased Smt. Kasturavva used to attend coolie work for earning livelihood. The accused being her husband, used to ill treat her abusing and beating in connection with his demand for money for consuming liquor. (iii) On 25.9.2009 at about 9.00 pm the deceased Smt. Kasturavva and the accused Parasappa together came to the house of the complainant, quarrelling with each other. At that time, the deceased told the complainant that the accused was demanding money from her, for his vices, i.e., for consuming liquor. At that time, the accused threatened that if the deceased, were not to give him money, he would finish her. Then the complainant consoled the deceased, advised the accused and sent both of them to their house. (iv) By about 12 O’clock in the midnight, on the same day, while the complainant, had slept in his house. At that time, the accused threatened that if the deceased, were not to give him money, he would finish her. Then the complainant consoled the deceased, advised the accused and sent both of them to their house. (iv) By about 12 O’clock in the midnight, on the same day, while the complainant, had slept in his house. One Ramanna Laxman Maddimani (P.W. 2) and another by name Laxam Yallappa Madar (P.W. 3), together came to his house, woke him up and informed that by about 11.30 pm on that day, they heard cry of the deceased Smt. Kasturavva from her house and on hearing the same they went there with a torch and they found that the accused was throttling the deceased by sitting on her chest and the deceased was struggling. They further informed him that by doing so the accused committed the murder of the deceased. (v) Immediately, on coming to know of the same, the complainant his wife Sangavva together went to the house of the accused and saw that the deceased was lying dead on the cot in the house having sustained bleeding injury on her face (right mandible). It was about 12.15 a.m. when the complainant saw the deceased lying dead in the said house. Thereafter, the complainant went to Bilgi police Station in the early morning of 26.9.2009 and lodged his complaint as per Ex. P.1. 4. On the basis of the said complaint, the SHO of Bilgi P.S. registered a case in crime No. 178/2009 against the accused, for the offence punishable under Section 302 IPC and issued FIR accordingly (as per E x. P.17). After completion of the Investigation, charge sheet came to be filed against the accused for the said offences and the Trial Court tried for the same. 5. On appreciation of the oral evidence of P.Ws. 1 to 16, the documents at Ex.P1 to P18, Mos.1 to 6, the Trial Court, by its impugned Judgment and Order of conviction and sentence convicted the accused for both the offences under Sections 498A and 302 IPC and sentenced him to undergo imprisonment for various periods and also to pay fine of various amount as stated supra. 6. We have heard the arguments of Sri N.D. Gundawade, learned Amicus Curiae for the appellant-accused and Sri. V.M. Banakar. learned Addl. SPP for the respondent-State. 6. We have heard the arguments of Sri N.D. Gundawade, learned Amicus Curiae for the appellant-accused and Sri. V.M. Banakar. learned Addl. SPP for the respondent-State. Perused the impugned Judgment and Order of conviction and sentence and also the entire material found in the original records obtained from the Trial Court. 7. Learned Amicus Curiae strongly contends that the prosecution has placed reliance on evidence the of P.Ws. 2 to 4, who claim to have actually witnessed the incident of throttling of the deceased by the accused, but, of the said witnesses P.W. 4 Ravi, a boy of 5 years old who is none other than the son of the accused and the deceased has been a tutored witness and P.Ws. 2 and 3 had no opportunity to witnesses the said incident and, therefore, the trial Court committed serious error in convicting the accused for the offence under Section 302 IPC. He further contends that the evidence of P.W. 1, the father of the deceased P.Ws. 2 and 3, the relatives of the deceased is not consistence as to the factum of alleged ill-treatment of the deceased by the accused and, therefore, the trial Court committed an error in convicting the accused for the offence under Section 498A IPC. While contending so learned Amicus Curiae submits that the present appeal deserves to be allowed and impugned Judgment and Order of conviction and sentence is liable to be set aside and the appellant-accused deserves an order of acquittal. 8. Per contra learned Addl, SPP strongly contends that though P.Ws. 2 and 3 are relatives of P.W. 1, It is an undisputed fact that they have been residing nearby the house of the accused and, therefore, both of them were natural witnesses and hence the trial Court did not committed any error in placing reliance on their evidence in convicting the accused for the said offences. He further contends that immediately on hearing cry of the deceased both P.Ws. 2 and 8 rushed to the house of the accused, saw the accused throttling the deceased and going away from the house, immediately after the incident and then both of them together informed P.W. 1 about the said incident and P.W. 1 lodged his complaint without any delay and, therefore, the Trial Court was quite justified in accepting their evidence in convicting the accused for the said offences. 9. Learned Addl. 9. Learned Addl. SPP further contends that M.O. No. 1 axe, used by the accused for causing injuries on the person of the deceased. M.O.6 Mundichati worn by the accused at the time of the incident. Mos. 3, 4 and 5, the clothes of the deceased were all found stained with same as could be seen from Ex. 18 FSL report and, therefore, the prosecution has proved beyond reasonable doubt the guilt of the accused for both the said offences. While contending so, he submits that the appeal of the appellant-accused is liable to be dismissed as being devoid of merits. 10. It is not in dispute that. P.Ws. 2 and 3 respectively, Ramanna Laxman Maddimani and Laxam Yallappa Madar, have been residing nearby the residential house of the accused. Besides this, it is also not in dispute that the residential house of P.W. 2 Ramanna Laxman Maddimani is just adjacent to the house of the accused. Both these witnesses have consistently stated in their evidence that the accused was addicted to consuming liquor and, therefore, he used to ill-treat the deceased Smt. Kasturavva everyday by beating and abusing her under the influence of liquor demanding from her money for his vices. They have further stated in their evidence that at about 11.30 pm on 25.9.2009, P.W. 2 heard cry of the deceased from her house and then he went to P.W. 3 and informed him about the same, thereafter both P.Ws. 2 and 3 together came to the house of the accused each holding a torch and that, when they came in front of the house of the accused the door of the house was opened and they could see by flashing their torches, the accused sitting on the chest of the deceased inside the house and throttling her and also assaulting her with axe on her face. They have further stated in their evidence consistently that when they flashed torch light, the accused came out of the house and went away but they could not apprehend him. They have further stated in their evidence that immediately on seeing the said incident, they went to the residence of P.W. 1, the father of the deceased and informed him about the said incident and thereafter the complainant went to the police station and lodged his complaint. 11. They have further stated in their evidence that immediately on seeing the said incident, they went to the residence of P.W. 1, the father of the deceased and informed him about the said incident and thereafter the complainant went to the police station and lodged his complaint. 11. P.W. 2 has stated in his cross-examination that he and P.W. 3 did not attempt to apprehend the accused. P.W. 3 has stated in his evidence that he and P.W. 2 saw the said incident by standing at the door of the house of the accused by flashing the torch light into the house but they did not enter into the house. Drawing our attention to this portion of evidence of P.Ws. 2 and 8 learned Amicus Curiae strongly contends that the conduct of these witnesses in not entering the house of the accused to see what had happened to the deceased appears to be quite unnatural and, therefore, the Trial Court committed an error in believing their evidence that they actually witnessed the incident of alleged throttling of the deceased by the accused and, therefore, if this evidence excluded, there remains no evidence to connect the accused with the commission of the offence. 12. Per contra learned Addl. SPP contends that the evidence of these two witnesses that they heard cry of the deceased and that on hearing the same they rushed to the house of the accused and saw in the torch light, the accused going away from his house has remained totally unchallenged inasmuch as these witnesses are not cross examined on behalf of the accused as to this portion of their evidence. He further contends that P.W. 4 is none other than the son of the accused and the deceased. Though this witness has stated in his evidence that he gave his evidence before the Court as per the say of his grand parents. It is suggested to him that at the time of the incident this boy had slept by the side of his mother and, therefore, he did not see the throttling of the deceased. This suggestion is accepted by P.W. 4 Ravi. Drawing our attention to this portion of evidence of P.W. 4 learned Addl. It is suggested to him that at the time of the incident this boy had slept by the side of his mother and, therefore, he did not see the throttling of the deceased. This suggestion is accepted by P.W. 4 Ravi. Drawing our attention to this portion of evidence of P.W. 4 learned Addl. SPP strongly contends that it clearly establishes the fact that the accused was inside the house at the time when the incident occurred and, therefore, even if it is assumed that P.Ws. 2 and 3 had no occasion to witness the actual incident of throttling, the fact remains that the accused was seen by them going away from inside his house at the relevant time but, the accused has not stated anything in his statement recorded under Section 313 Cr.P.C. and, therefore, the Trial Court did not commit any error in convicting the accused for the said offences. 13. P.W. 4 Ravi is a child aged about 6 years as on the date of his evidence. Therefore, he could be about 5 year old boy when the incident occurred. He has given rational answers to the questions put to him by the Trial Court before proceeding to record his evidence. He has stated in his cross-examination that he gave evidence as per the say of his grand father and maternal uncle. He has specifically stated in his evidence at the relevant time of incident that he was inside the house and his father was also there with him and his mother. Therefore, it is quite clear that, the accused who was inside the house on the relevant time of incident went away from the house and the same was witnessed by P.Ws. 2 and 3. This being so it was for him to give some explanation in his statement recorded under Section 313 Cr.P.C. as to how the incident could have occurred as the same was within his special knowledge. 14. P.W. 1 complainant, besides alleging in the complaint. Ex. P1, has stated in his evidence in clear terms that the deceased was subjected to cruelty by the accused, in connection with his demand for money, for consuming liquor. He has also stated in his evidence that on the very day of the incident, by about. 14. P.W. 1 complainant, besides alleging in the complaint. Ex. P1, has stated in his evidence in clear terms that the deceased was subjected to cruelty by the accused, in connection with his demand for money, for consuming liquor. He has also stated in his evidence that on the very day of the incident, by about. 9 or 9.30 p.m. accused and also the deceased together came to his house quarreling with each other and at that time, the deceased told him that the accused was ill-treating her demanding money from her for consuming liquor and then, he (P.W. 1) consoled her and advised the accused and sent them back to their house. Besides this, P.W. 5 Sangavva, the mother of the deceased, P.W. 6 Topanna Hanamappa Maddimani, the neighbour of the accused. P.W. 9 Durgappa Parasappa Madar, the first son of the deceased and the accused and P.W. 10 Ramanna Hanamanth Maddimani, the young brother of the deceased have all stated consistently as to the ill treatment given by the accused to the deceased by beating and abusing everyday by picking up quarrel with her in connection with his demand for money for consuming liquor which demand can be termed as unlawful demand as defined under explanation to Section 498A IPC. This evidence of these witnesses falls in line with the allegation in Ex.P1 complaint, and the evidence of complainant. Thus, it is clear that the prosecution hasestab1ished beyond reasonable doubt, the charge leveled against the accused for the offence under Section 498A IPC which was the motive for him to commit murder of the deceased and, therefore, the impugned Judgment and Order of conviction and sentence insofar as it relates to conviction of the accused for this offence does not call for any interference in the present appeal. 15. P.W. 1 has stated in his evidence that by about 12 in the mid night on that day both P.Ws. 2 and 3 came to the his house, woke him up and informed that the accused committed murder of the deceased in his house, by throttling her and then went away from there. He has further deposed that immediately on coming to know of the same, he went to the house of the accused saw the deceased lying dead on the cot having sustained some bleeding injuries to her face. He has further deposed that immediately on coming to know of the same, he went to the house of the accused saw the deceased lying dead on the cot having sustained some bleeding injuries to her face. He has further deposed that since it was late night, he could not go to police station for lodging complaint and, therefore, he went to Bilgl Police Station in the early morning of 26.9.2009 along with one Hanamanth Kariakappa Pujari (P.W. 7) got his compliant written by the said person as per Ex.P1. and handed over the same to the police. 16. P.W. 7 Hanamanth Kanakappa Pujari has stated in his evidence that he accompanied P.W. 1 to the Bilgi police station prepared the complaint Ex. P1 as narrated by P.W. 1 and then put his signature on it and that it was about 4.00am on 26.9.2009 when he prepared the said complaint. He has further deposed that after he wrote the said complaint, he took the signature of P.W. 1 on it and then complaint was given to the police. 17. P.W. 15, Laxman Bhimappa Hadimani, S.H.O. Bilgi. PS, has stated in his evidence that on 26.9.2009 at about 5.30 am, P.W. 1, the complainant Hanamanth Chandrappa Maddirnani, appeared before him and gave him the written complaint (Ex.P1). He has further deposed that on the basis of the said complaint he registered ease in Crime No. 178/2009 of the said PS against the accused for an offence under Section 302 of IPC and issued FIR, as per Ex.P17. On perusal of Ex.PI7 it could be seen that the same was received by the jurisdictional Magistrate by about 7.30am on 26.9.2009 without any delay. 18. Thus, it is clear from the above evidence of P.Ws. 1, 7 and 15 that immediately on coming to know of the incident through P.Ws. 2 and 3 in the mid night on 25.9.2009, without any unreasonable delay the complainant approached the jurisdictional police, got his complaint written by P.W. 7 Hanamanth Kanakappa Pujari as per Ex.P1 and gave the same to P.W. 15 SHO of the said P.S. who registered a case on the basis of the said complaint prepared FIR and dispatched the same without any delay and that FIR reached the jurisdictional Magistrate by about 7.00 a.m. on 28.9.2009. All these chain of events clearly rule out any possibility of foisting a case against the accused falsely involving him in the commission of murder of the deceased who is none other than his wife. Added to this accused has not given any explanation as to how deceased wife died during relevant night, though he claims that he had slept along with his other two children in Durgadevi Temple in the village. Further, this put that the accused had slept in the said Temple is not suggested to any of P.Ws. 2 and 3 who witnessed the accused going away from his house immediately after the occurrence of the incident or nor is it suggested to P.W. 4 Ravi, who is none other than the son of the accused. This is also not suggested to any of the other prosecution witnesses. Besides this he has not stated in his statement recorded under Section 313 Cr.P.C. as to his whereabouts during relevant night. Therefore, having regard to the above nature of evidence of P.Ws. l to 3 and also that of P.W. 4 Ravi that his father (accused) was in the house when the incident occurred. It is clear that the accused caused the death of the deceased. 19. Ex. P. 18 is the FSL report. It establishes that axe (MO1), the Kavadi (MO2), Mundichati (MO6) belonging to the accused. Jumper (MO3) belonging to the deceased and one Patla (MO 4) belonging to the deceased, which were sent by the I.O. to the FSL for chemical examination were found stained with the same group of blood. Further the evidence of P.W. 14 police constable that he carried all the said articles to the FSL Belgaum and Ex. P15 is the report submitted by him before I.O. for having carried the said articles clearly establishes that all the said articles were subjected to chemical examination and that after examining the same Ex. P18 report came to be issued. This also clearly establishes that it was the accused who was the author of the crime. P15 is the report submitted by him before I.O. for having carried the said articles clearly establishes that all the said articles were subjected to chemical examination and that after examining the same Ex. P18 report came to be issued. This also clearly establishes that it was the accused who was the author of the crime. It is also established by the prosecution that MO6 Mundichati of the accused was seized by the I.O. under Ex.P10 Panchnama on 28.9.2009, i.e., on the very next afternoon of the incident, P.W. 11 Pancha to Ex.P10 and the I.O have consistently stated in their evidence that the said MO4 came to be seized from the person of the accused on the afternoon of 26.9.2009 in the presence of P.W. 11 under the said pancha. Besides this MO No. l axe Ex.P9 also came to be seized from the house of the accused. 20. For the reasons aforesaid, we are of the considered opinion that the Trial Court was quite justified in convicting the accused for both the offences punishable under Sections 498A and 302 of IPC. Insofar as the sentence is concerned the accused is sentenced to undergo imprisonment for one year and 6 months for the offence under Section 498A and also to pay fine of Rs.6,000/- with default sentence of imprisonment for further period of 3 months and to undergo life imprisonment for the offence under Section 302 IPC which is the minimum sentence prescribed for the same and to pay fine of Rs.12,000/- with default sentence of imprisonment for further period of 6 months. We do not find any unreasonableness or arbitrariness in imposing these sentences of imprisonment and fine for the respective offences. 21. In the result, the present appeal filed by the accused in the said Sessions Case is hereby dismissed as being devoid of merits. Impugned Judgment and Order of conviction and sentence passed by the Trial Court is hereby confirmed. 22. While appreciating the efforts made by Sri N.G. Gundawade learned advocate, who has been appointed as Amicus Curiae, his legal fee is fixed at Rs.5,000/- which shall be paid to him by the Government of Karnataka.