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2017 DIGILAW 1536 (KAR)

K. Siddaraju S/o Kempaiah v. State of Karnataka

2017-11-17

JOHN MICHAEL CUNHA, RAVI MALIMATH

body2017
JUDGMENT : RAVI MALIMATH, J. 1. The case of the prosecution is that the incident took place on 4.10.2010 at about 3.30 p.m. by the side of the garden land of Shankaregowda of Dandinashivara village, Turuvekere Taluk, Tiptur District. The daughter of Honnaiah namely, the deceased Yashoda, was walking on the adjoining road. The accused went there in his Bajaj Motor Cycle bearing No. KA-06EA-9873 and restrained her from going further. He caused multiple stab injuries on her. Thereafter, he attempted to commit suicide by drinking poison. Based on these allegations, a case was registered in Crime No. 103 of 2010 before the Danidnashivara Police Station. Investigation was taken up. The accused was arrested. Charge sheet was filed against the accused for the offences punishable under Sections 341, 302 and 309 of the IPC. 2. The accused denied the charges and claimed to be tried. In order to prove its case, the prosecution examined 16 witnesses, marked 14 exhibits along with 19 material objects. The statement of the accused was recorded under Section 313 of the Cr.P.C. He has also furnished an additional statement in support of his case. The trial court by the impugned order convicted the accused for the offence punishable under section 302 of the IPC and sentenced him to undergo life imprisonment and imposed a fine of Rs. 10,000/- and in default of payment of fine, was sentenced to undergo simple imprisonment for a further period of three months. He was convicted and sentenced to undergo rigorous imprisonment for one month and fine of Rs. 500/- in default of fine, was directed to undergo simple imprisonment for further period of 15 days for the offence punishable under section 341 of the IPC. Further he was sentenced to undergo rigorous imprisonment for one year and fine of Rs. 2,000/- in default of payment of fine to undergo simple imprisonment for a further period of one month for the offence punishable under section 309 of the IPC. All the sentences were directed to run concurrently. 3. Aggrieved by the said order, the accused has filed this appeal. 4. Shri Vishwanath Poojary, learned counsel for the appellant contends that the trial court committed an error in convicting the accused since there is no material produced by the prosecution to prove its case beyond all reasonable doubt. The defence has set up a theory contrary to that of the prosecution. 4. Shri Vishwanath Poojary, learned counsel for the appellant contends that the trial court committed an error in convicting the accused since there is no material produced by the prosecution to prove its case beyond all reasonable doubt. The defence has set up a theory contrary to that of the prosecution. It is the case of the defence that the deceased was already done to death. Thereafter, when the accused went there and saw her dead body he was frightened and presumed that he would be found guilty of the offence and therefore consumed poison. The trial court has failed to consider the case of the defence in the right perspective. Hence, the appeal be allowed by acquitting the accused. 5. On the other hand, Smt. Namitha Mahesh, learned HCGP, defends the case of the prosecution. She contends that the prosecution has established its case beyond all reasonable doubt and that the case set up by the defence is only on paper. There is no material to prove its case at all. Therefore, mere statements are not sufficient to probabalise the case of the defence. Hence, it is pleaded that the appeal be dismissed by confirming the judgment of the trial court. 6. PW-1 is the complainant and an eye witness. He is the uncle of the deceased. He has stated that on 4.10. 2010 at about 3.00 p.m. since the deceased had not returned home, they were apprehensive, because the accused had made forcible suggestions to marry the deceased and therefore he would create a problem. Therefore, he and PW-2 were going on the road to get her from her college. At that time, they heard the cries of a girl. They went there and noticed that the accused was cutting the neck of the girl with a knife. They noticed that the boy is the accused and the girl is Yashoda, the deceased. Thereafter, the accused went near the two wheeler which was parked nearby, removed a bottle of pesticide from the motor bike and drank it. Thereafter, he fell down on the ground holding the hand of the deceased. He has further stated that on hearing the screams, CW-3 Puttaraju, also came to the scene of offence. He in turn intimated the incident to PW-13 Shivanna who in terms of the prosecution case, directed PW-16, the head constable, who rushed to the scene of offence. Thereafter, he fell down on the ground holding the hand of the deceased. He has further stated that on hearing the screams, CW-3 Puttaraju, also came to the scene of offence. He in turn intimated the incident to PW-13 Shivanna who in terms of the prosecution case, directed PW-16, the head constable, who rushed to the scene of offence. Since the accused was still alive, he was taken to the hospital for treatment. He has further stated that he has lodged the complaint in terms of Ex.P.1 with the police at about 5.15 p.m. He was also a witness to the spot mahazar in terms of Ex.P.2. He is a panch to the seizure of slippers. 7. PW-2 is yet another witness. He had accompanied PW-1 on the said date. He has reiterated the very evidence as stated by PW-1. It was PW-1 and PW-2 who were going together on the road, who have witnessed the incident. Nothing worthwhile has been elicited in the cross-examination to disbelieve them. 8. PW-3 is a scientific officer, who examined M.Os. 5 and 6 namely, the Tar mixed mud with blood and the Tar mixed mud without blood which were seized from the scene of offence. 9. PW-4 is the Principal of the Basaveshwara Composite PreUniversity College. He has stated that the deceased was his student studying in II PUC and attended classes on 4.10.2010 between 10.30 a.m. to 3.10 p.m. and accordingly has given the attendance certificate of the deceased vide Ex.P.5. 10. PW-5 is a witness to the inquest mahazar. PW-6 is the spot mahazar witness. PW-7 is the owner of the motor cycle involved in the incident. He has stated that the deceased borrowed the motor cycle from him on the previous day on the ground that he has to visit his in-laws house. 11. PW-8 is the mother of the deceased. She speaks about the previous attempt made by the accused to marry the deceased. She has also stated that they declined to the marriage proposal. He threatened her regarding the same. PW-9 is a witness to the inquest mahazar as well as the seizure mahazar for seizure of the Jerkin of the accused. 12. PW-10 is the doctor who treated the accused. He has detected poison namely, Organo Phosperous Compound found in the body of the accused. 13. He threatened her regarding the same. PW-9 is a witness to the inquest mahazar as well as the seizure mahazar for seizure of the Jerkin of the accused. 12. PW-10 is the doctor who treated the accused. He has detected poison namely, Organo Phosperous Compound found in the body of the accused. 13. PW-11 is the doctor who conducted the postmortem examination on the deceased. He has noticed six injuries on the vital parts of the body. 14. PW-12 is an Assistant Engineer, who prepared the sketch – Ex.P.11. PW-13, who on receipt of the information with regard to murder from CW-3 has informed the same to PW-16, PW-14 and PW-15 are the investigating officers. 15. The defence have not let in any evidence. However, they have taken a specific stand in the statement recorded under section 313 of the Cr.P.C. It is the specific case of the accused that he is innocent of the offence charged against him. He received a telephone call from the deceased at about 3.00 p.m. on 4.10.2010. She informed him that there was something wrong. That he if does not come to meet her, it would create further problems. She asked him to come immediately. Therefore he went to meet her. By that time he met her, she had already sustained various injuries over her body. She was lying in a pool of blood. Being shocked and believing that the murder would be falsely foisted on him, he drank the poison from the bottle lying next to the body of the deceased intending to end his life. When he regained consciousness, he found himself in the hospital at Tumakuru. 16. The trial court disbelieved the plea of the defence and accepted the case of the prosecution. It was of the view that the evidence of PWs. 1 and 2 who were the eye witnesses to the incident, cannot be doubted. The previous conduct of the accused in making a proposal of the marriage of the deceased and on such refusal by the mother of the deceased, was a substantial motive for the accused to commit the offence. Therefore, even though the accused got married one month prior to the incident, it is the previous conduct, that is the strong motive for the accused to commit the offence. Therefore, even though the accused got married one month prior to the incident, it is the previous conduct, that is the strong motive for the accused to commit the offence. Therefore, relying on the other materials which assisted the prosecution namely, the recoveries of the knife, the bottle containing the poison, the blood stained clothes etc, the trial court was of the view that the prosecution has established its case beyond all reasonable doubt. 17. We have considered the contentions and examined the records of the case. 18. When PWs. 1 and 2 were walking together on the road next to the adjoining land of Shankaregowda, they heard certain cries. They went to the place from where they heard the crying sound. They identified the deceased as well as the accused. The deceased had already fallen on the ground. When they reached there, they noticed that the accused was stabbing the deceased. When they went near them, the deceased went to the motor cycle which was parked nearby, removed a bottle from it and drank it. He immediately fell down holding the hand of the deceased. The statements of PWs. 1 and 2 are identical and corroborative. Nothing worthwhile has been elicited in the cross-examination to disbelieve the statement of the eye witnesses. At that point of time, CW-3 on hearing their cries also came to the scene of offence. He inturn intimated the incident to PW-13. PW-13 thereafter informed the same to the constable PW-16 to go to the scene of offence. 19. (a) The evidence of the eye witnesses are clear and cogent. We do not find any reason to disbelieve their statements. They have explained there presence at the scene of offence. The reason assigned by them is that in the normal course, Yashoda would return home after completing college at about 2.00 p.m. Since even after 3.00 p.m. she had not returned, both of them went in the direction of the college to bring her. They suspected that the accused would unnecessarily create a trouble to the deceased in view of the refusal to marry him on the earlier occasion. Therefore, they have explained their presence at the scene of offence. (b) The same is countered by the statement of the defence that the death had already taken place even before the accused went to the scene of offence. Therefore, they have explained their presence at the scene of offence. (b) The same is countered by the statement of the defence that the death had already taken place even before the accused went to the scene of offence. The reasoning assigned is that the deceased telephoned the accused at about 3.00 p.m. and asked him to meet her. Therefore, he went to the scene of offence. However, the statement made by the accused has only remained on paper. There is no material to indicate that the deceased had made any such telephone call to him. The phone has not been placed as evidence. It was not the duty of the prosecution to seize the phone as well as to collect the call details. In fact, that is not the case of the prosecution. It is the case of the defence that a telephone call was made to the accused and therefore he went to the scene of offence. Therefore it was for the defence to prove their case by bringing on record the call details. He has failed to do so. Therefore, his presence at the scene of offence has remained unexplained. 20. The material would also indicate that the deceased was from Balekatte Village. The accused was a resident of Irkasandra Village, Gubbi Taluk. The distance between the two villages is almost about 34 k.m. which is a matter of fact. The case of the defence is that he had gone to meet his mother-in-law who is residing at Doddanahalli, which according to them, is 8 k.m. from the scene of offence. This statement of the defence has also not been probabalised, since no material has been ledin to prove the same. The defence should have examined the mother-in-law or led in other evidence to show that the accused on that day had intended to meet his mother-in-law. 21. The further case of the prosecution is that the entire incident is preplanned, since the motor bike was borrowed on the previous day itself. Therefore the motor bike was borrowed to waylay the deceased when she was coming back from the college. The said fact has been elicited from the owner of the two wheeler namely, PW-7. He has stated that the accused borrowed the motor cycle on the previous day. 22. The post mortem report in terms of Ex.P.10 indicates the various injuries sustained by the deceased. The said fact has been elicited from the owner of the two wheeler namely, PW-7. He has stated that the accused borrowed the motor cycle on the previous day. 22. The post mortem report in terms of Ex.P.10 indicates the various injuries sustained by the deceased. Five injuries were noticed by the doctor. The opinion of the doctor is that the cause of death is due to shock and haemorrhage due to the aforesaid injuries. The injuries as stated by the doctor is corroborated by the evidence of PWs. 1 and 2, who noticed the assault being committed on the deceased. Therefore, the medical opinion too, supports the case of the prosecution. 23. The evidence on record would indicate that the accused was present at the scene of offence. The case of the prosecution is that he came there and committed the murder of the deceased. The defence set up is that he came there after the murder took place. Therefore, what has been established by the prosecution as well as the defence is that undisputedly the deceased was present at the scene of the offence. In fact, the case of the defence with regard to the commission of the acts of the deceased and consumption of the poison by the accused has been clearly seen by PWs. 1 and 2. The recoveries of the bloodstained slippers and Jerkin of the accused have also been proved by the evidence of prosecution. The consumption of poison by the accused is established by the evidence of doctor PW-10. 24. On re-appreciating the entire evidence and material on record, we are of the view that there is no perversity committed by the trial court. The appreciation of the evidence by the trial court is just and appropriate. Having reconsidered the entire evidence and the material on record, we too arrive at the same conclusion as that arrived at by the trial court. The pleas set up by the defence have only remained as pleas. None of it is backed by any material in order to prove their case. There is nothing on record to accept the defence theory as propounded by them. The findings recorded by the trial court are in consonance with the records. We do not find any error committed by the trial court that calls for any interference. Consequently, the appeal being devoid of merit is dismissed. There is nothing on record to accept the defence theory as propounded by them. The findings recorded by the trial court are in consonance with the records. We do not find any error committed by the trial court that calls for any interference. Consequently, the appeal being devoid of merit is dismissed. The judgment of conviction and order of sentence dated 22.10.2011 passed in S.C. No. 15 of 2011 by the Fast Track Court, Tipturu, is confirmed.