Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 1079 (KAR)

Mohammed Rafeeq @ Patan v. State of Karnataka

2015-09-10

MOHAN M.SHANTANAGOUDAR, R.B.BUDIHAL

body2015
JUDGMENT : The judgment and order of conviction dated 15.4.2011 passed by Fast Track Court-XV, Bangalore in Sessions Case No.881/2009 is called in question in this appeal by the convicted accused. By the impugned judgment, the trial Court has convicted the accused under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/. 2. Case of the prosecution in brief is that the accused is the husband of the deceased; their marriage was performed about 18 years prior to the incident in question; two children viz., P.Ws.2 and 4 were born out of the wedlock; the youngest of the children is P.W.4 and she was aged about 14 years during the relevant point of time; the incident took place on 4.4.2009 at 9.00 a.m. in the matrimonial house of the accused and the deceased; the accused and deceased only were there in the house; P.W.2 the son of the couple was always living with his grandmother i.e., mother of the deceased; P.W.4, the daughter of the couple was playing outside the house; quarrel took place inside the house and the same was over heard by P.W.5, who informed P.W.3 another neighbour. P.W.5 is the landlord of the house; they were hearing the quarreling sound standing outside the house; ultimately, when the deceased cried for help, P.Ws.3, 5 and other neighbours broke open the door and tried to enter the house; immediately, the accused ran away from the house; the clothes of the accused were profusely bloodstained; P.W.2 and the parents of the deceased were informed by P.W.5, who rushed to the spot; however, by that time, the victim was shifted to Victoria Hospital by police and P.W.3 in an autorickshaw; the victim was declared dead in Victoria Hospital at 10.15 a.m.; the complaint lodged by P.W.5 as per Ex.P2, came to be registered in crime No.75/2009 of J.J.Nagar police station for the offence punishable under Section 302 of IPC; the accused was arrested at 11.15 a.m. P.W.17, the Inspector of Police completed the investigation and laid the charge sheet. 3. In order to prove its case, the prosecution in all examined 18 witnesses, got marked 54 exhibits and 16 material objects. On behalf of the defence witnesses are not examined and documents are also not marked. 3. In order to prove its case, the prosecution in all examined 18 witnesses, got marked 54 exhibits and 16 material objects. On behalf of the defence witnesses are not examined and documents are also not marked. As aforementioned, the trial Court convicted the accused for the offence punishable under Section 302 of IPC. 4. Sri.Hashmath Pasha, learned advocate appearing on behalf of the appellant taking us through the material on record submits that the incident has taken place within the house; there are no eyewitnesses to the incident in question; only the accused would be knowing as to how the incident has taken place; looking to the trend of crossexamination and the evidence recorded from the Court, it is clear that the accused lost his mental balance because of the persistent unlawful conduct of the deceased; though the deceased was the wife of the accused, she was not caring for her husband and she was not allowing her husband to come inside the house; of late i.e., since about six months prior to the incident in question the deceased was said to have the company of another person and in that regard frequent quarrels used to take place between the accused and the deceased; the accused used to come to the house, but he was not allowed inside the house, in as much as, according to the deceased, the accused was not earning sufficiently and was not looking after the family affairs; even on the previous night of the incident in question, there was a quarrel between the couple; in that quarrel also, some of his grievances were ventilated by the accused against the deceased in the house; since the deceased did not mend her conduct to perform the legal and marital obligations as a wife, the accused being enraged must have stabbed the victim with the knife; the accused did not come to the spot fully prepared for the commission of the offence, but he has used the kitchen knife; the accused did not abscond, but on the contrary, he himself appeared before the police; though the victim had sustained 14 injures, all the injuries except injury No.7 are simple in nature; the death has occurred due to injury No.7 sustained by the victim; the offence at the most may fall under Section 304I of IPC. Hence, he submits that the conviction of the accused may be moulded for the offence punishable under Section 304I of IPC. The said submissions are opposed by Sri.Keshavamurthy, learned SPP2 who contends that even on the previous night, quarrel took place between the husband and wife and during the said quarrel, the accused had threatened the deceased to take her life by assaulting her with knife; P.Ws.2 and 4 have deposed about the said fact; since the accused had the intention to commit murder and as there is no material to show that the accused was deprived of the power of self control by grave and sudden provocation, the accused is rightly convicted by the trial Court for the offence punishable under Section 302 of IPC. 5. The facts in the matter are not much in dispute. Looking to the arguments as mentioned supra, it is clear that there is difference of opinion between the advocates as to for which offence the accused should be convicted. Be that as it may. 6. It is beneficial to note the version of each of the witnesses, in brief, before proceeding further. P.W.1 is the maternal uncle of the deceased. He has deposed that the accused and deceased were quarreling with each other; the accused was not looking after the deceased properly. In other words, P.W.1 has deposed about the motive for the commission of the offence. P.Ws.2 and 4 are the children of the deceased and the accused. P.W.2 is the son aged about 17 years and P.W.4 is the daughter aged about 14 years at the time of incident. P.W.2 has also deposed about the motive for the commission of the offence and that he does not know as to what actually transpired either on the date of the incident or on the previous day of the incident, in as much as, he used to live with his grandmother in a different house in a different area. However, P.W.4 has deposed that when she was playing outside the house, she heard the quarreling sound of her parents. Meanwhile, P.Ws.3 and 5 apart from others gathered in front of the house; P.Ws.3 and 5 broke open the door; she saw the accused running away from the scene wearing bloodstained clothes. P.W.3 is the neighbour and P.W.5 is the owner of the house wherein the deceased was living. Meanwhile, P.Ws.3 and 5 apart from others gathered in front of the house; P.Ws.3 and 5 broke open the door; she saw the accused running away from the scene wearing bloodstained clothes. P.W.3 is the neighbour and P.W.5 is the owner of the house wherein the deceased was living. Both of them have deposed about the quarrels which ensued between the deceased and the accused within the house; both of them have deposed about breaking open the door and the accused running away from the scene wearing bloodstained clothes. P.W.6 is the Doctor who conducted Post Mortem Examination. The Post Mortem report is at Ex.P6. He has given the opinion after seeing the weapon M.O.1 knife as per Ex.P7. P.W.7 is the witness for seizure of knife and clothes of the accused in J.J.Nagar police station. He has turned hostile to the case of the prosecution. P.Ws.8, 9, 10, 15, 16 and 18 are the police constables who participated during the course of investigation at different levels. P.W.11 is the Engineer who drew the sketch of scene of offence as per Ex.P14. P.W.12 is the witness for inquest panchanama. Said panchanama was held in Victoria Hospital. Ex.P15 is the inquest report. He has also deposed about the seizure of M.O.Nos.4 and 5 i.e., clothes of the deceased. P.W.13 is the Scientific Officer of Forensic Science Laboratory. She has given the report as per Ex.P17 on examining 16 articles sent to her. The report discloses that all the articles sent for examination including the clothes of the accused, clothes of the deceased and the materials collected from the spot were having blood stains of human origin and all of them were having ‘A’ Group of blood. P.W.14 is the witness for seizure panchanama Ex.P8 under which, knife and clothes of the accused were seized in the police station. P.W.17 is the Investigation Officer. He has completed the investigation and laid the charge sheet. He has registered the complaint lodged by P.W.5 as per Ex.P2. He has sent the FIR to the jurisdictional Magistrate as per Ex.P48. 7. Case of the prosecution mainly depends upon the evidence of P.Ws.2 to 5. As aforementioned, even the defence advocate does not dispute that P.Ws.3 and 5 are the natural witnesses to the incident in question and P.W.4 being the daughter of the deceased is also a natural witness to the incident in question. 7. Case of the prosecution mainly depends upon the evidence of P.Ws.2 to 5. As aforementioned, even the defence advocate does not dispute that P.Ws.3 and 5 are the natural witnesses to the incident in question and P.W.4 being the daughter of the deceased is also a natural witness to the incident in question. As mentioned supra, P.W.4 being a small child aged about 1314 years during the relevant period, she was playing outside the house. The incident has taken place within the matrimonial house of the accused and the deceased. Quarrel took place between the accused and the deceased inside the house, but nobody could enter the house, because the door of the house was locked from inside. P.Ws.3 and 5 being the neighbours came in front of the door of the house, after hearing the sound of quarrel, they tried to enter, but they could not do so because of the closure of the door from within the house. They have waited for some time. Since the deceased cried loudly for help, P.Ws.3, 5 and others could not resist themselves and they broke open the door and entered the house only to see the dead body of the deceased with bleeding injuries. Immediately, the accused who was inside the house ran away from the scene. His clothes were bloodstained. These facts are fully spoken to by P.Ws.3, 4 and 5. The evidence of P.Ws.3, 4 and 5 in that regard is consistent, cogent and reliable. Even though the defence does not dispute the veracity of these witnesses, to satisfy our conscience we have independently assessed the material and have concluded that the versions of P.Ws.3, 4 and 5 with regard to the aforementioned facts are consistent, cogent and reliable. 8. We have already mentioned supra that the clothes of the accused including the knife used for commission of the offence were sent for Forensic Science Laboratory examination along with the clothes of the deceased and the items seized from the scene of offence. All the aforementioned items, which were sent for Forensic Science Laboratory examination, were found stained with human blood having ‘A’ group. Thus, it is clear that the accused was very much present inside the house and that the knife seized from him was used for commission of the offence. His clothes were also stained with the blood of his wife i.e., the deceased. 9. Thus, it is clear that the accused was very much present inside the house and that the knife seized from him was used for commission of the offence. His clothes were also stained with the blood of his wife i.e., the deceased. 9. The incident has taken place within the house wherein only the accused and the deceased were present. P.Ws.3, 4 and 5 have heard the quarrelling sounds of husband and wife i.e., accused and deceased. Ultimately, the deceased cried for help loudly and the door was broke open. The accused ran away from the scene with bloodstained clothes. The knife used for commission of offence hidden by him was later seized after his arrest. These facts conclusively prove that it was the accused and accused alone who is the cause for the death of the deceased. 10. Though no explanation is forthcoming from the accused in his statement recorded under Section 313 of Cr.P.C., we find sufficient material on record either by way of suggestions or by way of admissions of the relatives of the deceased and accused as to why, the quarrels used to take place. It is the case of the specific case of prosecution that the quarrels used to take place between the accused and the deceased, since the earning of the accused was not sufficient to look after his family; it was the deceased who used to look after both her children and the affairs of the house, either by raising loans from others or by raising loan from her mother; the place of residence (i.e., the house) of the accused and the deceased is only one room; and one portion of the room is used as kitchen and some other portion of the said room is used as bathroom. Remaining portion was used for sleeping. Remaining portion was used for sleeping. These facts clearly reveal that the couple were very very poor; the accused was in the business of selling old clothes; he could not earn money sufficient for living; he had to go from one place to another place for doing the said business and he used to stay back in such places up to 15 days at a stretch; in effect, the family of the accused was badly financially affected because of the poor earning of the accused; it is not the case of the prosecution that the accused was addicted to bad vices or that he was a spendthrift or that he used to squander money for illegal purposes. On the other hand, it is the case of the prosecution that the earnings of the accused were not sufficient to maintain his family. For that reason only, probably P.W.2 being the elder son of the accused and the deceased, was taken care of by his grand mother i.e., mother of the deceased who was residing in a different house in a different locality. The school fees of P.W.4 were borne by the grandmother of P.W.4. All these facts are admitted by the prosecution as well as by the defence. However, the defence of the accused is that the deceased did not allow the accused to come inside the house and she started deserting him both physically and mentally; whenever he used to come to the house, the deceased did not allow him to enter the matrimonial house and consequently, the accused used to sleep on streets; about six months prior to the incident, thick rumors generated that the deceased was keeping the company of some other person and in that regard, quarrels used to take place between the couple frequently; on the previous night of the incident, once again the quarrel took place between the accused and the deceased inside the house and in the said quarrel, the accused had threatened the deceased to take away her life in case if she does not mend her conduct by leaving the company of other person. So saying, the accused went away from the house; on the next day morning, once again the accused came to the house and after entering the house, bolted the house from inside and started quarreling with the deceased. So saying, the accused went away from the house; on the next day morning, once again the accused came to the house and after entering the house, bolted the house from inside and started quarreling with the deceased. The subject of the quarrel appeared to be once again the same i.e., the accused was telling the deceased that she is keeping somebody else’s company and that she should mend her conduct. But the deceased retorted saying that she will desert him and will have the company of someone else and the accused should not ask her all the particulars. These facts are found in the cross examination of P.Ws.2, 3, 4 and 5. In the light of such material on record, we are of the opinion that the defence advocate is justified in arguing that the accused had lost his mental balance because of the wrongful attitude of the deceased. As the deceased did not mend her conduct, as the deceased persisted that she will continue same attitude in future also and as the accused virtually was being punished by his own wife because of poverty, the accused might have lost the power of self control and has committed offence. We hasten to add here itself that it is not a case wherein the accused did not have any intention to commit the death of the deceased. On the other hand, the material on record sufficiently discloses that the accused had got intention to commit the death of the deceased because of the aforementioned reasons. The deceased had sustained as many as 14 injuries. Out of them, minimum of 34 injuries are severe in nature. All of them are on the vital portions of the body i.e., face and neck. Knife is used for commission of the offence. The accused has taken undue advantage of the loneliness of the deceased. The incident has taken place within the house, wherein only the accused and deceased were available during the relevant point of time. Since the door was bolted from inside, none could enter inside to save the deceased. On the previous night of the incident, the accused had threatened the deceased to take away her life. All these facts collectively prove that the accused had the intention to do away with the life of the deceased. The resultant effect of all these facts was the death of the deceased. 11. On the previous night of the incident, the accused had threatened the deceased to take away her life. All these facts collectively prove that the accused had the intention to do away with the life of the deceased. The resultant effect of all these facts was the death of the deceased. 11. Since we find that the offender/accused has committed the offence while he was deprived of the power of self control by grave and sudden provocation of the deceased in the early hours of the date of the incident, in as much as, the deceased was not in a position to mend her conduct, the accused is liable to be convicted for the offence punishable under Section 304-I of IPC. 12. We have heard the learned advocates on the question of imposing sentence. Having heard the learned advocates on the question of sentence, the following order is made: (i) The judgment and order of conviction passed by the trial Court dated 15.4.2011, convicting the appellant/accused for the offence punishable under Section 302 of IPC stands set aside, in stead, accused is convicted for the offence punishable under Section 304-I of IPC. (ii) He is sentenced to undergo imprisonment for a period of ten years and to pay a fine of Rs.10,000/, in case of default of payment of fine, he shall undergo further imprisonment for one year. (iii) The period of sentence already undergone by the appellant/accused in the prison shall be given set off as per Section 428 of Cr.P.C. Accordingly, appeal is allowed in part.