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2016 DIGILAW 576 (KAR)

State of Karnataka v. Veluswamy Alias Swamy

2016-07-22

MOHAN M.SHANTANAGOUDAR, R.B.BUDIHAL

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JUDGMENT : Mohan M. Shantanagoudar, J. 1. The judgment and order dated 18-11-2011 passed by the Sessions Court, Kodagu at Madikeri in S.C. No. 57 of 2008 is the subject-matter of this appeal. By the impugned judgment, the Trial Court has convicted the accused for : the offence under Section 304(I) of Indian Penal Code and sentenced him to undergo imprisonment for 7 years and to pay fine of Rs. 1,000/- with a default clause. 2. Cri. A. No. 292 of 2012 is filed by the State seeking enhancement of sentence for the offence under Section 304(I) of IPC. Cri. A. No. 292 of 2012 is filed by the State praying for an order of conviction against the accused for the offence under Section 302 of IPC instead of Section 304(I) of IPC. 3. 2. Cri. A. No. 292 of 2012 is filed by the State seeking enhancement of sentence for the offence under Section 304(I) of IPC. Cri. A. No. 292 of 2012 is filed by the State praying for an order of conviction against the accused for the offence under Section 302 of IPC instead of Section 304(I) of IPC. 3. Case of the prosecution in brief is that the deceased was working in the Farm of P.W. 5 as a manual labour; she is the wife of accused; she was working as a maid in the house of P.W. 5 whenever called for; the accused used to suspect the fidelity of the deceased inasmuch as, he was of the opinion that the deceased had illicit relationship with one Muthumani (not examined); in that regard, accused used to come to the house everyday after consuming alcohol and used to quarrel with his wife/deceased; on the night of the incident also i.e., on 8-6-2008, the accused came to the house as usual and started quarreling with his wife/deceased; two minor children of the deceased were also living with the deceased and the accused under the same roof and they were also present at that point of time; since there was loud cries by the deceased; the neighbours including P.W. 1 whose houses are situated near to the house of the deceased saw the accused assaulting the deceased; in particular, P.W. 1 used his torch to witness the incident; in the light emanated from the torch he saw the accused assaulting the deceased; on the next day morning i.e., on 9-6-2008, the dead body of the deceased was found with the bleeding injuries in her matrimonial house; at the early hours of the next day i.e., on 9-6-2008 the accused himself went to the house of P.W. 5 (his employer) and informed him that somebody has assaulted the deceased and she is lying in the house; immediately thereafter, P.W. 5 went to the house of the deceased and saw the dead body of the deceased with bleeding injuries. Complaint came to the lodged as per Ex. P. 4 by P.W. 5, which came to be registered at 10.00 a.m. on 9-6-2008 in Crime No. 116 of 2008 by C.W. 12, Malinge Gowda, HC of Madikeri Rural Police Station; P.W. 10, the Inspector of Police has conducted the investigation and laid the charge-sheet. 4. Complaint came to the lodged as per Ex. P. 4 by P.W. 5, which came to be registered at 10.00 a.m. on 9-6-2008 in Crime No. 116 of 2008 by C.W. 12, Malinge Gowda, HC of Madikeri Rural Police Station; P.W. 10, the Inspector of Police has conducted the investigation and laid the charge-sheet. 4. In order to prove its case, the prosecution in; all examined 11 witnesses and got marked 7 exhibits and 10 material objects. On behalf of the defence one exhibit is got marked from the statement of P.W. 1. As mentioned supra, the Trial Court, on evaluation of the material on record, convicted the accused for the offence under Section 304(1) of IPC, though the accused was charged for the offence under Section 302 of IPC. 5. Sri Vijayakumar Majage, learned Additional State Public Prosecutor and Sri B.S. Prasad, learned Amicus Curiae having taken us through the entire material on record argued in support of their cases. Learned Amicus Curiae assisted the Court by special reference to the defence case. 6. P.W. 1 is the eye-witness to the incident. He is a neighbour. He saw the incident of assault in the torch light. He saw the dead body of the deceased in her house on the next day morning; P.W. 2 is the Doctor. He conducted autopsy over the dead body. The autopsy report is at Ex. P. 1; P.W. 3 is the P.W.D. Engineer who prepared the spot sketch. Ex. P. 2 is the sketch of scene of offence; P.W. 4 is the Police Constable who carried the First Information Report (Ex. P. 3) to the jurisdictional Magistrate; P.W. 5 is the Estate Owner/employer of the accused. He has deposed that the accused was working as loader and was staying in the house provided to him and his family members; that the accused informed him about the death of the deceased at about 5.45 a.m. on the next day i.e., on 9-6-2008; thereafter, he went to the house of the deceased and saw the dead body lying in the house of the deceased; he informed the same to the police and lodged the complaint as per Ex. P. 4. He is the witness for seizure panchanama-Ex. P. 5. However, he was examined only on a short point. Despite the same his evidence supports the case of the prosecution to a major extent; P.Ws. P. 4. He is the witness for seizure panchanama-Ex. P. 5. However, he was examined only on a short point. Despite the same his evidence supports the case of the prosecution to a major extent; P.Ws. 6 and 8 who are the witnesses for mahazar-Ex. P. 6 have turned hostile to the case of the prosecution. P.W. 7 who is the witness for inquest, mahazar-Ex. P. 6 supported the case of the prosecution. He identified M.Os. 2, 3 and 4. M.O. 4 is four pieces of wooden club. It is relevant to note here itself that it is the case of the prosecution that because of the assault by the accused to the deceased the same was cut into four pieces. P.W. 9 has turned hostile to the case of the prosecution. P.W. 10 is the Inspector. He completed the investigation and laid the charge-sheet. P.W. 11 is another Police Constable. He also participated during the course of investigation. 7. The evidence of the Doctor-P.W. 2 who conducted autopsy and given the post-mortem report as per Ex. P. 1 clearly discloses that the deceased had sustained 24 external injuries and two internal injuries and all the injuries; were anti-mortem in nature. He has further deposed that such injuries are possible if a person is assaulted with the club-M.0.4 (which is broken into pieces). Looking to the post-mortem report and the evidence of the Doctor,it reveals that the deceased has sustained contusions all over the body. Even otherwise, learned Amicus Curiae does not dispute that it is a case of homicidal death. 8. The incident has taken place in the house of the accused and the deceased. Except the accused and the deceased, the other two who were residing with them were the minor children of the deceased born to her first husband. Thus the needle of suspicion points only towards the accused. Looking to the trend of the cross-examination of P.W. 1 by the defence, it is clear that the defence is also not seriously disputing the involvement of the accused in the crime. No explanation whatsoever is forthcoming as to how the death of the deceased has taken place in the matrimonial house of the accused. It is for the accused to explain the death of the deceased in the house, more particularly, when the incident has taken place when he was present in the house during the night. No explanation whatsoever is forthcoming as to how the death of the deceased has taken place in the matrimonial house of the accused. It is for the accused to explain the death of the deceased in the house, more particularly, when the incident has taken place when he was present in the house during the night. It is not the case of anybody including the defence that somebody had entered the house and committed the murder of the deceased. On the other hand, the evidence of P.W. 1 clearly reveals that after hearing the cries and loud sounds, he came out of the house and used the torch light for seeing as to what is happening in front of the house of the deceased. At that point of time, he saw the accused assaulting the deceased with club in the house. His house is situated at about 40 ft. away from the house of deceased. However, P.W. 1 did not go near the house of the deceased to pacify the quarrel. On the other hand, on the next day he came to know about the death of the deceased and thereafter, he went to the house and saw the dead body. P.W. 1 is an independent witness. He is neither related to the accused nor to the deceased. On the other hand, he is distantly related to P.W. 5 who is the employer of the accused. In our considered opinion, P.W. 1 has come with the true story, inasmuch as, he does not have any bias in his mind. Moreover, he is the adjoining owner of the house. His presence is natural in his house during the night. He has also deposed about the earlier conduct of the accused coming to the house fully drunk and quarreling with his wife. Though certain suggestions are made during the cross-examination of P.W. 1 to discredit his evidence, the defence was not successful in that regard. In view of the same, in our considered opinion, the Trial Court is justified in concluding that the evidence of P.W. 1 fully supports the case of the prosecution that the accused has assaulted the deceased with dub during night in his matrimonial house, consequent upon which, the deceased died by sustaining bleeding injuries. 9. The case of the prosecution is further supported by the evidence of P.W. 5-complainant who is the employer of the accused. 9. The case of the prosecution is further supported by the evidence of P.W. 5-complainant who is the employer of the accused. He has also deposed that at about 5.45 a.m. on 9-6-2008 the accused came to his house and informed about the death of his wife. He was informed by the accused that somebody has killed the wife of the accused; immediately thereafter, he called the police over phone. After the police arrived at the scene he went to the scene of offence and saw the dead body in the house of the accused. He has further deposed that P.W. 1 had informed him that quarrels were taking place between the accused and the deceased on the previous night. He has also deposed about lodging of the complaint etc. In the cross-examination it is admitted by P.W. 5 that the accused was not regular to his work; he used to miss from the work for 3-4 days. He has reiterated in the cross-examination that he used to be informed by P.W. 1 and others that the accused used to quarrel with the deceased frequently. 10. Except the evidence of P.Ws. 1 and 5 and the evidence of the Doctor-P.W. 2, no other evidence may be relevant to prove me involvement of the accused in the crime. However, the scene of offence panchanama-Ex. P. 6 reveals that the death has taken place in a room of the house of the accused and the dead body was lying with bleeding injuries. Four pieces of the club were lying on the spot. The evidence of P.W. 7 supports the contents found in the mahazar-Ex. P.6. 11. The cumulative effect of the evidence on record is that the accused and the accused alone has committed the death of the deceased. Though it was open for the accused to explain about the death of the deceased if he was really innocent, he has not chosen to do so; there is not even a suggestion in the cross-examination to show that the accused was not present at the time of the incident or that somebody has entered the house and committed murder during night. Having regard to the totality of the facts and circumstances, we also conclude that the deceased lost her life because of the assault on her by the accused. 12. Having regard to the totality of the facts and circumstances, we also conclude that the deceased lost her life because of the assault on her by the accused. 12. We also find that the Trial Court is justified in convicting the accused for the offence under Section 304(1) of IPC, inasmuch as, the offence may fall under Exception 1 to Section 300 of IPC. The accused is a rustic villager; he was working as a loader under P.W. 5; he was suspecting the fidelity of his wife and in that regard, he used to come to the house fully drunk and used to quarrel with his wife everyday; even on that night also, he came to the house and started quarreling with the deceased. It seems during the quarrel between the accused and the deceased the accused was deprived of the self-control in view of provocation by the deceased. The Trial Court has assigned certain valid reasons for coming to the conclusion that the offence falls under Section 304(I) of IPC. Though the deceased has sustained many injuries and though the accused has used a dub for assaulting his wife, the same are not sufficient to conclude that the accused has committed the offence under Section 302 of IPC. Though we find that the accused had got intention to commit the death of the deceased, but death has occurred due to the deprivation of the power of self-control. Hence, we also concur with the conclusion reached by the Trial Court that the accused has committed the offence under Section 304(I) of IPC. 13. It has come in the evidence, so also, it is observed by the Trial Cowl that the accused is suffering from HIV Aids. The two minor children of the deceased are to be looked after; it seems the accused has already undergone imprisonment of 7 years imposed by the Court. Having regard to the totality of the facts and circumstances, we are of the considered opinion that the Trial Court is justified in imposing 7 years imprisonment. Hence, no interference is called for. Both the appeals fails and the same are dismissed. We place on record the valuable assistance rendered by Sri B.S. Prasad, learned Amicus Curiae. The registry' is directed to pay Rs. 10,000/- to learned Amicus Curiae, as honorarium.