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2016 DIGILAW 238 (KAR)

Chandran v. State of Karnataka

2016-03-04

B.VEERAPPA, MOHAN M.SHANTANAGOUDAR

body2016
JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order of conviction dated 30.11.2010 passed by the III Addl. District and Sessions Judge, D.K., Mangalore in Sessions Case No. 111/2009 is called in question by the convicted accused. By the impugned judgment the Trial Court has convicted the accused for the offences punishable under Sections 498(A) and 302 of IPC and sentenced him to under go imprisonment for life and to pay fine of Rs. 5,000/- in default to undergo imprisonment for a period of 6 months. 2. Case of the prosecution in brief is that the deceased Laxmi is the wife of the accused; the accused had got two wives viz., Rathna and Laxmi (deceased). It seems the accused married Laxmi after divorcing Rathna; the accused and 1st wife Rathna had got a son by name Mahendra (PW.20); the accused and the deceased had got two children who are younger than Mahendra; at the time of incident Mahendra was aged about 9 years. The accused was doing coolie along with Ganesha - PW.5 and Mani - CW.13 (husband of PW.1) in Nagarjuna Company at Padubidri and once in a week he used to return to home to live with his family at Kunjathbail Village. On the date of the incident i.e., 25.7.2009 at about 9.00 p.m. the accused had come to his house, he had dined with his wife deceased Laxmi and three children; it is relevant to note that PW.20 -Mahendra aged about 9 years, who was born to first wife was also living with the accused and the deceased; during that night the accused started suspecting the fidelity of the deceased and he quarreled with her on that aspect of the matter; thereafter he pushed her to the ground and threw a stone on her and thereafter he assaulted with the burning stick, consequent upon which victim Laxmi suffered number of injuries; major injuries sustained by her were on the head; the accused threatened his son - Mahendra (PW.20), not to inform about the incident to anybody and PW.20 being a child did not inform about the incident to anybody; however, on the next day evening at about 7.00 p.m. the accused himself went to the house of PW. 1 and informed her about the incident; PW. 1 and informed her about the incident; PW. 1 was a relative of the deceased; she came to the house of the deceased along with PWs.2 and 3 and after seeing that the victim was not in a position to talk and move, she shifted the victim to Wenlock Hospital, wherein she succumbed to the injuries on the next day i.e., on 28.07.2009. In the meanwhile, first information came to be lodged by PW.1 at about 11.00 a.m. on 28.07.2009 before Sub-Inspector of Police - PW.21, Kavoor Police Station, Mangalore, which came to be registered in Crime No. 90/2009; first information lodged by PW.1 is at Ex. P.1; the Circle Inspector of Police (PW.17) completed the investigation and laid the charge sheet for the offences punishable under Sections 498(A) and 302 of IPC. In order to prove its case, the prosecution in all examined 22 witnesses and got marked 22 exhibits and 8 material objects. On behalf of the defence no witness is examined as mentioned supra. On evaluation of the material on record and on hearing the parties the Trial Court convicted the accused for the offences with which he was charged. 3. PWs.1, 2, 3 and 5 went to the house of the accused and deceased, immediately after hearing the news from the accused that the deceased was unwell, at 7.00 p.m. on 26.7.2009; PW.1 lodged the complaint as per Ex. P.1 before the Kavoor Police Station; PWs.1 and 2 shifted the injured to Wenlock Hospital; in the meanwhile, they also got the information from the step son of the deceased viz., Mahendra - PW.20 about the incident in question. PW. 1 is the witness to the scene of offence Mahazar - Ex. P. 2 and she has also deposed about the sketch of scene of offence drawn by police as per Ex. P.3; PW.2 is the witness for inquest post mortem also; PW.8 is the witness for inquest mahazar; PW.4 is the neighbour of the accused and the deceased, but she has turned hostile; PW.5 being the brother of PW.1 and also husband of PW.2 also went to the house of the deceased and he also went along with PW. 1 for shifting the victim to the hospital; PW.6 is the Doctor who conducted post mortem examination over the dead body; Ex. P.6 is the post mortem report; Ex. 1 for shifting the victim to the hospital; PW.6 is the Doctor who conducted post mortem examination over the dead body; Ex. P.6 is the post mortem report; Ex. P.7 is the opinion rendered by the Doctor regarding the cause of death of the deceased. PW.7 is the Engineer, who drew the scene of offence as per Ex. P. 8 as mentioned supra; Ex. P.8 is the inquest mahazar; PW.9 is the neighbour; he has deposed that the accused and the deceased quarreled prior to the incident in question in the house; PW. 10 is the photographer who took the photograph as per Exs.P.9 to 12; PWs.11, 12 and 16 are the Police Constables who participated during the course of investigation at different levels; PW.13 is the Doctor, who treated the victim immediately on admitting the victim to the hospital on 26.07.2009, he issued wound certificate as per Ex. P.17. He has recorded the history in the case sheet and such history was provided to him by the accused himself to the effect that he assaulted the victim. PW.14 is the witness for the seizure Mahazar - Ex. P.18 under which the dresses of the accused are seized. PW.19 is the owner of the shed wherein the incident has taken place where the accused and the deceased were living; the deceased was cooking food with the help of fire wood. He is witness for seizure Mahazar/panchanama - Ex. P.15, under which the dresses of the deceased were seized. PW.18 is the brother of the deceased; PW.19 is the mother of the deceased. Both these witnesses have deposed about the harassment meted out by the accused to the deceased. PW.20 is the important and sole eye witness to the incident in question, he was aged about 9 years at the time of the incident, he is step son of the deceased. He has deposed about the incident in question to the effect that the accused assaulted the deceased with the stone and the wooden club. PW.21 is the Sub-Inspector of Police at Kavoor Police Station he has received the complaint lodged by PW.1 as per Ex. P.1 and registered Crime No. 90/2009. PW.22 is another neighbour of the accused, but he has turned hostile. 4. The case of the prosecution mainly rests on the evidence of PW.20 the sole eye witness to the incident coupled with medical evidence. 5. P.1 and registered Crime No. 90/2009. PW.22 is another neighbour of the accused, but he has turned hostile. 4. The case of the prosecution mainly rests on the evidence of PW.20 the sole eye witness to the incident coupled with medical evidence. 5. We prefer to discuss the ocular testimony of PW.20, who is none other than the step son of the deceased and son of the accused at the first instance. The deposition of PW.20, if read in toto, reveals that he is bold, oriented and has deposed the incident before the Court without any hesitation. He has deposed that the accused used to suspect the fidelity of the deceased and in the night of the incident also the accused assaulted the deceased with wooden club, the deceased tried to run away from the house, but the accused dragged the victim holding her tuft and once again assaulted her with the club. Immediately thereafter the victim fell unconscious and thereafter the accused took out a stone and hit her on the chest and consequently the deceased sustained number of injuries and she did not get up from the bed/ground. Prior to the incident in question the deceased had taken dinner along with the accused; on the next day morning the accused brought tea from a tea shop, but the deceased did not drink the tea; PWs.1 and 2 and others went to the house of the deceased on the next date of the incident and took the victim to the Wenlock Hospital, since the accused had told PW.20 that he should not inform about the incident to anybody he did not inform anybody till PW. 1 and others came to the house of the deceased. 6. Though PW.20 is cross-examined at length, nothing worthwhile is elicited by the defence so as to discredit his evidence. He has reiterated in his cross-examination that it was accused who assaulted on the victim. Though a suggestion is made that he was tutored by his grand parents as well as the relatives, he has denied such suggestion and has deposed before the Court that whatever he has stated before the Court is true. He has also admitted that the deceased was cooking in the house with the use of fire wood (wood burning stove). 7. He has also admitted that the deceased was cooking in the house with the use of fire wood (wood burning stove). 7. From the aforementioned version of PW.20, it is amply clear that it was accused, who assaulted on the body of the victim with wooden club and consequently the victim fell unconscious. It is further deposed by PW.20 that the accused threw the stone on the chest of the deceased. This version of PW.20 needs to be tested with the medical evidence on record. There cannot be any dispute in case of any dispute between the ocular testimony and medical evidence, the ocular testimony prevails inasmuch as the medical evidence is only an opinion of the Doctor. But in the matter on hand, we are of the clear opinion, that the medical evidence also needs to be given due importance, particularly, in the light of the admission of PW. 1 in her cross-examination. 8. PW.1 who was the relative of the deceased has admitted in the cross-examination that the victim was suffering from ailment of fits and she came to know about the same very recently prior to the death of the deceased. Hence it is clear that the deceased was suffering from the ailment of fits. 9. Coming to the medical evidence, the prosecution relies upon the evidence of PWs.6 and 13. PW.6 has conducted the post mortem examination over the dead body. The post mortem report is at Ex. P.6 and the opinion rendered by him is at Ex. P. 7. 10. The post mortem report as well as the evidence of PW.6 who conducted the post mortem examination clearly reveals that the deceased had sustained 12 injuries and all such injuries are anti mortem in nature. The said Doctor has opined that the death was due to head injuries sustained as a result of blunt force trauma. Two weapons were sent by the Investigation Officer to the Doctor for giving opinion as to whether such weapon can cause the death or not. After opening the sealed packets he found one irregular granite stone and a wooden stick. According to the case of the prosecution both the weapons were used for the commission of the offence. On examination of both the weapons on 28.10.2009 the Doctor PW.6 has given his opinion as per Ex. After opening the sealed packets he found one irregular granite stone and a wooden stick. According to the case of the prosecution both the weapons were used for the commission of the offence. On examination of both the weapons on 28.10.2009 the Doctor PW.6 has given his opinion as per Ex. P.7 that the head injuries as mentioned in the post mortem report are unlikely when the given weapons are used as weapons for the commission of the offence. The head injuries as mentioned in post mortem are likely to occur when the victim was pushed and subsequent fall on the stone (with head hitting the stone). He has further opined that the injuries sustained are sufficient in ordinary course of nature to cause the death. From the aforementioned opinion of the Doctor it is amply clear that the prosecution case as made out before the Court that the victim was assaulted by the accused with the wooden club and thereafter with the stone, deserves to be rejected. However, it could be safely concluded that the accused must have assaulted the victim with force and thereafter pushed her to the ground, consequent upon which the deceased fell down on the ground and her head had hit the stone, which was used as a oven for cooking purpose. This version of the Doctor PW.6 gains support from the version of another Doctor -PW.13. Doctor Vasant - PW.13 was the Doctor, who examined the victim i.e., immediately on admitting the victim to the hospital at about 9.15 p.m. on 26.7.2009, the victim was examined by him. The accused also had come to the hospital along with the victim apart from PWs.1, 2 and 5. The Doctor PW.13 has deposed that the husband of the victim gave the history of assault by him to the effect that he assaulted the victim at 6.00 a.m. The said Doctor has noticed six external injuries on the person of the victim. The first injury is on the left side of the scalp measuring 4 cms x 0.5 cm, all other injuries are on different parts of the body. The CT scan of the head was taken on 27.07.2009 and it reveals fracture involving right temporal and left tempero parietal bone. The first injury is on the left side of the scalp measuring 4 cms x 0.5 cm, all other injuries are on different parts of the body. The CT scan of the head was taken on 27.07.2009 and it reveals fracture involving right temporal and left tempero parietal bone. The Doctor has opined that the injury No. 1 was grievous in nature and other injuries are simple in nature, which means injury No. 1 which was found on the head and which has resulted in fracture of right temporal and left tempero parietal bone was the only grievous injury sustained by the deceased, whereas other injuries are simple in nature. In the cross-examination it is elicited that Chandra (accused) brought the deceased Laxmi to the Hospital and he informed the Doctor that he had assaulted his wife. It is further admitted by the Doctor in the cross-examination that if a person falls on the hard surface, there is likelihood of causing aforementioned injuries. 11. From the aforementioned opinions of the Doctors, it is clear that both the versions tally with each and other; corroborate with each other. Both the Doctors have opined that only the injury sustained on the head of the deceased was grievous in nature and the same was the cause for the death of the deceased. The history given by the accused before Doctor PW.13 also corroborates with the medical version to the effect that the accused assaulted and hit his wife, consequent upon which the deceased must have fallen down and sustained injury on her head. 12. As mentioned supra, PW.1 has deposed that the victim was suffering from ailment of fits. In this regard, Sri. Prasanna, learned counsel is justified in arguing that the deceased was assaulted by the accused. The deceased must have fallen on the ground and consequently her head must have hit the stone. Be that as it may, looking to the totality of the facts and circumstances of the case, we are of the opinion, that the death has occurred because of the deceased falling to the ground on hard surface or on the stone. It is not in dispute that the deceased was cooking in the house by using sticks in a oven created by her by fixing stones and she must have fallen on one such stones and she has sustained minor injuries also. It is not in dispute that the deceased was cooking in the house by using sticks in a oven created by her by fixing stones and she must have fallen on one such stones and she has sustained minor injuries also. The aforementioned discussion would clearly reveal that the evidence of PW.20 is an exaggerated version to certain extent. He being a child, we have to evaluate his version carefully, since more particularly when, he is sole eye witness to the incident in question. By considering the entire material on record we are of the opinion, that the accused did not have intention to commit the murder of the deceased, but he had pushed the victim to the ground after assaulting her. Unfortunately, the deceased lost her life inasmuch as her head hit the stone. In view of the same, the accused needs to be convicted for the offence punishable under Section 304 II of IPC. 13. The accused has got three minor children and those children will have to be looked after. The appellant is in custody from August 2009. Having regard to the totality of the facts and circumstances of the case, in our considered opinion, interest of justice would be met if the accused is sentenced to undergo imprisonment for eight years. 14. Accordingly the appeal is allowed in part and following order is made:-- "a. The judgment and order of conviction passed by the Trial Court for the offence punishable under Sections 302 of IPC stands set aside. Instead the accused is hereby convicted for the offence punishable under Section 304 II of IPC. He is sentenced to undergo imprisonment for eight years. He is also imposed with fine of Rs. 5,000/-; in default, to undergo imprisonment for a period of six months; b. The judgment and order of conviction convicting the accused for the offence punishable under Section 498(A) of IPC and sentencing him to undergo imprisonment for two years stands confirmed. c. Both the sentences shall run concurrently. d. The sentence already undergone by the appellant shall be given set off as per the provisions of Section 428 of Cr.P.C. e. In case of recovery of fine amount the entire amount of fine shall be paid in favour of minor children of the deceased as compensation."