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2018 DIGILAW 601 (KAR)

Prabhakara Alias Suresh v. State of Karnataka

2018-05-23

B.V.NAGARATHNA, BUDIHAL R.B.

body2018
JUDGMENT : Budihal R.B., J. This appeal is preferred by the appellant-accused being aggrieved by the judgment and order of conviction dated 10-7-2013 passed by the Principal Sessions Judge, Udupi in S.C. No. 19 of 2012 wherein the appellant-accused has been convicted for the offences punishable under Sections 307 and 302 of Indian Penal Code, 1860. 2. Brief facts of the prosecution case are, P.W. 1-Smt. Jyothi lodged the complaint as per Ex. P. 1 wherein it is stated that she is residing in address mentioned in the complaint, along with her husband Prabhakara, sister Shailaja and her two children namely, Pradeep and Prajwal and she is a house wife. 3. Marriage of her sister Shailaja was performed about two years back with A run Kumar and he was doing sculpture work at Coimbothur. The marriage of the complainant with accused-Prabhakar was performed seven years back. The husband of the complainant is a short tempered man, picking up quarrel with the complainant for petty matters; complainant and her sister Shailaja were pacifying the same. The husband of the complainant is also doing sculpture work at Kerala and he came to the native for two days for Diwali Festival. On 26-10-2011 morning, in connection with the household work, husband of the complainant started making galata and he assaulted the complainant with hands. In the meanwhile, Shailaja, the sister of the complainant came and she objected to the husband of the complainant saying that why unnecessarily he is assaulting Jyothi; at that time there was exchange of words between Shailaja and husband of the complainant. Then, the husband of the complainant went out and it was at about 10.00 a.m. Thereafter, complainant and her sister were in the house and the children of the complainant were taken by Geetha, sister of the husband of the complainant. Husband of the complainant, after coming from the market started to make galata and he asked to provide him payasa and he screamed loudly; when she gave payasa to him, he threw the same abusing the complainant in filthy language. In the meanwhile, sister of the complainant came and questioned as to why he is abusing her sister. Then the husband of the complainant took knife from the TV show-case and told Shailaja that he will commit her murder. In the meanwhile, sister of the complainant came and questioned as to why he is abusing her sister. Then the husband of the complainant took knife from the TV show-case and told Shailaja that he will commit her murder. The sister of the complainant came outside the house on the road and husband of the complaint made her lay on the ground and assaulted with knife on chest portion and on the light hand. The complainant screamed and made a hue and cry. Then, one Ravi came running to prevent the same. The husband of the complaint assaulted Ravi also with knife. It was at 4.30 p.m. The neighbors also came to the said place, and then the husband of the complainant went away from that place. Shailaja sustained serious injuries and was not in a position to speak. Thereafter, Shailaja (deceased) and Ravi were shifted to Karkala Government Hospital in an autorickshaw. After examining, Doctor declared that Shailaja was already dead and Ravi was shifted to KMC Hospital, Manipal for higher treatment. The husband of the complainant, in connection with the household work, made galata and when it was questioned by the deceased Shailaja, he assaulted with knife and committed her murder and he also caused injury to the complainant and Ravi. Hence, she requested to take legal action against her husband. On the basis of the said complaint, case came to be registered in Crime No. 145 of 2011 for the offences punishable under Sections 324, 307 and 302 of Indian Penal Code. 4. Investigating Officer conducted investigation and filed the charge-sheet against the accused for the offences punishable under Sections 324, 326, 307 and 302 of Indian Penal Code. 5. Learned Sessions Judge framed the charges against appellant-accused for the offences punishable under Sections 323, 504,506, 320 and 326 or 307 of Indian Penal Code. After the charge was read over and explained to the accused, since the accused denied the charges, the matter was set down for trial. 6. In support of its case, prosecution examined in all, 13 witnesses and also got marked Exs.P.1 to P.19 and also material objects as M.Os. 1 to 12. Appellant-accused examined under Section 313 of Criminal Procedure Code, 1973 and his statement came to be recorded. On the side of the defence, no witnesses were examined but one document-Ex. 6. In support of its case, prosecution examined in all, 13 witnesses and also got marked Exs.P.1 to P.19 and also material objects as M.Os. 1 to 12. Appellant-accused examined under Section 313 of Criminal Procedure Code, 1973 and his statement came to be recorded. On the side of the defence, no witnesses were examined but one document-Ex. D. 1 was got marked during the course of cross-examination of P.W. 4. 7. After hearing the arguments on both sides and considering the material available on record, both oral and documentary, ultimately the learned Sessions Judge convicted the appellant-accused for the offences punishable under Sections 307 and 302 of Indian Penal Code and sentenced accordingly. 8. Being aggrieved by the judgment and order of conviction and also challenging the legality and correctness of said judgment on the grounds as mentioned at Ground Nos. 4(a) to (m) of the appeal memorandum, the appellant-accused is before this Court. 9. We have heard the arguments of the learned Counsel for the appellant-accused, so also the learned SPP for the respondent-State. 10. Learned Counsel for the appellant-accused submitted that though as per the complaint averments Ex. P. 1, it is mentioned that injury was also caused to the complainant, but looking to the oral evidence adduced before the Trial Court, she has not stated that she was also assaulted by her husband. He also submitted that even she has explained how she sustained injuries even then, it is wrongly held by the learned Sessions Judge that the said injuries to the complainant also were caused by the husband of the complainant. He has also submitted that even with regard to the other evidence of the prosecution witnesses, there is no consistency in their evidence. The recovery of the knife and also the bloodstained clothes of the appellant-accused were not satisfactorily established by the prosecution. In this regard, learned Counsel submitted that evidence of the pancha witnesses is not worth believable. Inspite of that, learned Sessions Judge relied upon the said evidence and even held that the recovery is proper and it is established satisfactorily. 11. Learned Counsel further submitted that the entire material go to show that prosecution has not at all led acceptable evidence so far as the alleged voluntary statement of accused and the production of knife as well as the clothes. 11. Learned Counsel further submitted that the entire material go to show that prosecution has not at all led acceptable evidence so far as the alleged voluntary statement of accused and the production of knife as well as the clothes. He made the submission that the entire evidence led by the prosecution will not make out a case attracting the alleged offence punishable under Sections 302 and 307 of Indian Penal Code. It is his contention that while appreciating the prosecution material, the evidence of the complainant is totally ignored by the learned Sessions Judge, though it goes to show that appellant is not at all responsible for causing such injuries to her. Hence, learned Counsel submitted that the judgment and order of conviction passed by the Court below is not in accordance with the materials placed on record. He has submitted that the prosecution failed to make out a case beyond reasonable doubt. 12. Learned Counsel submitted that from the material produced, reasonable doubt arises in the mind of the Court. Therefore, the benefit of doubt may be given to the accused person by allowing the appeal and setting aside the judgment and award passed by the Court below. 13. Per contra, learned SPP submitted that it is no doubt true that P.W. 1, the wife of the accused herein stated during the course of cross-examination that her husband has not at all caused any injuries to her and she sustained injuries while cutting the vegetable. Learned SPP submitted that in the examination-in-chief, she narrated the entire case of prosecution. The complaint averments also go to show that assault was made not only on the deceased but also on Ravi and even on P.W. 1 wife of the accused herein. He submitted because she being the wife of the accused, in order to protect the accused person, she turned hostile and not supported the prosecution case. Learned SPP submitted that there are other two injured witnesses, one is Ravi-P.W. 2 and another Madhava-P.W. 3, who are also the neighbours came to the rescue. 14. Learned SPP drew our attention to the evidence of P.W. 9-the Doctor who examined P.W. 2-Ravi and issued certificate as per Ex. P. 11 and made the submission that Injury No. 1 is grievous in nature. 14. Learned SPP drew our attention to the evidence of P.W. 9-the Doctor who examined P.W. 2-Ravi and issued certificate as per Ex. P. 11 and made the submission that Injury No. 1 is grievous in nature. He also drew our attention to the evidence of P.W. 8-another Doctor, who examined P.W. 1 and issued the injury certificate as per Ex. P. 10. Learned SPP further made the submission that oral evidence of Doctor-P.W. 8 and P.W. 9 corroborates with the case of prosecution as narrated in the complaint. He also drew our attention to the post-mortem report of Shailaja which is produced as per Ex. P. 7 and made the submission that the Doctor, who conducted autopsy, gave the opinion that death was due to Hypovoleamic Shock. Learned SPP also drew our attention to the evidence of other witnesses also and the seizure Panchanama and also the seizure of the knife and bloodstained clothes of the accused. He submitted that the bloodstained nighty of the deceased was also seized and marked as M.O.2 and all the material objects were sent to FSL for examination. The FSL report goes to show that the bloodstains on the said articles are human blood. Hence, he made the submission that all these materials were considered by the learned Sessions Judge who has held that prosecution proved its case beyond all reasonable doubt. He made submission that there are two injured witnesses i.e. P.Ws. 1 and 2 apart from the death of Shailaja. He made the submission that the appellant-accused has not made out a case to allow the appeal and to set aside the conviction order passed by the Court below. Hence, he prays to dismiss the appeal. 15. We have perused the grounds urged in the appeal memorandum, judgment and order of conviction passed by the Courts below, oral evidence of the prosecution witnesses and the documents produced before the Trial Court and also considered the submissions made by the learned Counsel appearing for both the parties at the Bar. 16. It is seen, the wife of the accused person is the complainant in this case. As per complaint averments, appellant-accused was picking up quarrel unnecessarily in connection with household matters and he was abusing and assaulting the complainant. 16. It is seen, the wife of the accused person is the complainant in this case. As per complaint averments, appellant-accused was picking up quarrel unnecessarily in connection with household matters and he was abusing and assaulting the complainant. When Shailaja, the deceased, came to rescue the complainant and she was questioning the accused person as to why unnecessarily he is abusing her sister, at that time he took out knife and made the deceased to lie on the ground and assaulted her with said knife. When Ravi and wife of the complainant went to rescue, he assaulted them also and caused injuries. In this regard, we have perused the wound certificate-Ex. P. 11 and Ex. P. 10. Ex. P. 10, is in respect of complainant-Jyoti, she sustained two injuries, one is small laceration over tip of thumb right 1 cm x 1/2 cm and the other injury is an incised like wound 2 cm x over web space right thumb and index finger. However, the Doctor opined that the injuries are simple in nature. Ex. P. 11, another wound certificate in respect of Ravi is concerned, the Doctor, who examined, noticed totally four injuries on him, which are mentioned as under: 1. 5 x 0.5 x 4 cm deep stab wound on left Supramammary area of the chest 4 cm superior to the nipple communication to the chest wall with haemothorax. 2. 3 cm incised wound on the volar aspect of left thumb. 3. 4 cm incised wound on the right hand. 4. 4 x 1 x 0.5 cm laceration on the dorsum of right hand 1st web space. 17. The Doctor has mentioned that injury No. 1 is grievous in nature. In this regard, two others were examined as P.Ws. 8 and 9 and in their oral evidence also they stated about the injuries sustained by Ravi as well as the complainant in this case. 18. We have also perused the post-mortem report-Ex. P. 7. The Doctor who has conducted autopsy also noticed external injuries over the dead body of Shailaja and accordingly, he issued post-mortem report. After seizure of knife, it was referred to Doctor for examination and opinion. After examination of knife, doctor gave the opinion that by using such knife, the injuries that have been mentioned in the post-mortem report can be caused. After seizure of knife, it was referred to Doctor for examination and opinion. After examination of knife, doctor gave the opinion that by using such knife, the injuries that have been mentioned in the post-mortem report can be caused. Material also goes to show that at the instance of the accused, the knife and bloodstained clothes were seized under the seizure mahazar-Ex. P. 5 and in this connection, witness-P.W. 5 has been examined by the prosecution. P.W. 5 is one Sharan, who has deposed in his evidence in examination-in-chief that he knows the accused person, on 26-10-2011 at about 10.30 p.m. he was called to the police station, like him, one Uday Kumar also came and at that time, Sub-Inspector was enquiring the accused person and accused surrendered before the police. Accused person admitted that he has committed the offence and through his right hand, he took out the knife from jeans pant and produced before PS I. At that time, there were bloodstains on his jeans pant and shirt. Police have made him to remove the clothes and they have seized the said clothes. They were packed and sealed and his signature was obtained. The witnesses identified the signature of P.W. 5 in Ex. P. 5(a) in seizure mahazar. He also identified the signature of another witness Pramod Kumar and signature of witness Uday Kumar as Ex. P. 5(b) and Ex. P. 5(c). He also identified the knife as M.O. 1 and also shirt and pant as M.O. 4 and M.O. 5 respectively Even he also identified signature on slip pasted on the pack containing said material objects. During the course of examination, P.W. 5 has deposed that the accused surrendered before the police at about 11.30 p.m., at the time, there was light in the police station. When accused gave his statement admitting his guilt, he was present in the police station. He has not stated the contents of the mahazar but however, police read the contents in his presence and put signature to the same. The accused gave M.O. 1-material objects before the police. Earlier to that he has not seen the material objects. When he produced M.O. 1, there were bloodstains on the said material objects. He has not stated the contents of the mahazar but however, police read the contents in his presence and put signature to the same. The accused gave M.O. 1-material objects before the police. Earlier to that he has not seen the material objects. When he produced M.O. 1, there were bloodstains on the said material objects. But he denied the suggestion that when they were produced, there were no bloodstains on the same, he denied the suggestions that there were no bloodstains on the pant and shirt of the accused. 19. The Investigating Officer has been examined as P.W. 13. In his examination-in-chief, he has deposed in detail about the examination he has conducted. He has also deposed that on 26-10-2011 at 11 pm accused surrendered in the police station and when he interrogated the accused, he admitted about the offence that he has committed and after observing the arrest formalities when he interrogated the accused, he gave voluntary statement and he appeared before the police station with the knife and bloodstained clothes. They have conducted personal search of the accused and from the right side of the pant pocket knife was produced before the police and also seized bloodstained pant and shirt of the accused. At that time, Sharan and Uday Kumar were panchas to the said mahazar. The material objects seized were packed and sealed and their signatures were obtained on the labels pasted. He has identified the mahazar-Ex. P. 5 and also identified the knife as M.O. 1 and shirt and pant as M.Os. 4 and 5. Therefore, looking to these evidence of the, panch witnesses as well as Investigating Officer-P.W. 13, the prosecution has established the seizure mahazar-Ex. P. 5 which is cogent and satisfactory evidence. The seized materials were sent to FSL. The prosecution also produced FSL report which is marked as per Ex. P. 19. We have perused the document-Ex. P. 17, another report from the FSL. The material examined were three in number i.e., SI. Nos. 1 to 3 in Ex. P. 17 and the opinion of the FLS reads as "Extract of the contents of all the above stated articles were subjected to color tests and Thin layer chromatographic methods of analysis and responded negative for volatile poisons, pesticides, barbiturate, benzodiazepines, toxic metal ions and anions". Looking to Ex.P.17-the prosecution made it clear that death is not because of such poison. Looking to Ex.P.17-the prosecution made it clear that death is not because of such poison. Another document-Ex.P.19, under which totally 12 articles were sent as SI. Nos. 1 to 12 and exhibits for serology were identified as SI. Nos. 13 to 20. Looking to the certificate-Ex. P. 19, the articles at SI. Nos. A, B, C, D, E and F were stained with blood, so also J and L. Therefore, the FSL report states there were bloodstains on the said articles including the knife, pant and shirt of the accused person. 20. Regarding serology report is concerned, it is mentioned that the articles at SI. Nos. A, B, C, D, E, F, J and L were stained with human blood. But regarding the blood group is concerned, B, C, D, E and F are stained with 'B' blood group. The blood group on the items A, J and L could not be determined because the results of the tests were inconclusive. A perusal of Ex. P. 19-the FSL report, makes it clear that even the clothes worn by the accused and produced before the police at Ex. P. 5 were also stained with blood and it was human blood. There are eye-witnesses to the incident. In that regard, we have perused oral evidence of two injured eye-witnesses, one is Ravi who has been examined as P.W. 2 and the other, the wife of the accused-Jyothi who is also injured and examined as P.W. 1, and she turned hostile and not supported the prosecution case. During the course of cross-examination when she was questioned whether she had been to the police station on that day, she said yes and again she was questioned when she went to the police station, whether she put her signature to Ex. P. 1 as per Ex. P. IA, she has admitted that she put her signature. In para 10, on her cross-examination, she further deposed that she has not filed any application stating that police have filed false case against her husband. The next sentence is important wherein she also deposed that, she was not having any sort of suspicion in the steps taken by the police. When nighty was shown to her after taking out from the sealed package, she identified that its her nighty and there were bloodstains which was marked as per M.O. 2. The next sentence is important wherein she also deposed that, she was not having any sort of suspicion in the steps taken by the police. When nighty was shown to her after taking out from the sealed package, she identified that its her nighty and there were bloodstains which was marked as per M.O. 2. She further stated that she gave it to the police when they came to the spot. Though it was suggested that she is falsely deposing that two days earlier to the incident her sister had been to Miyaar to the house of her husband only with an intention to give false evidence in the case but witness denied the said suggestion. Another injured witness Ravi, in his examination-in-chief, he has deposed that Shailaja is the sister of Jyothi. Appellant-accused had committed her murder. On 26-10-2011, morning itself, there was a galata in the house of Jyothi in between Jyothi, accused-Prabhakar and deceased Shailaja. At noon time, soup was prepared for Diwali festival. At about 4 or 4.30 p.m., he heard galata, he came out from his house and galata was going on between Jyothi and Shailaja. At that time, accused went inside the house and brought knife stating that in their quarrel, she is coming in the middle and assaulted Shailaja on her chest portion, when he went to pacify the accused, he threatened him also and then he came back side. When Shailaja was proceeding further, accused came and assaulted one or two times then she fell down and he went ahead to protect Shailaja but accused stated that he will commit his murder also. Accused assaulted him with said knife on the chest portion and when again he came to assault him, he brought his hand in the middle for protection and sustained injury to the hand. He was taken to hospital and operation was conducted in KMC Hospital, Manipal and for fifteen days he was inpatient. Police went there and recorded his statement. Pant was also bloodstained and he handed over the same to the police. In the said galata and in the struggle, even Jyothi-P.W. 1 had sustained injury to her hand from the said knife. He identified knife as M.O. 1. Before the Court, the witness shows that there were five stitches put to injury and even he has shown the injury sustained on the thumb finger. In the said galata and in the struggle, even Jyothi-P.W. 1 had sustained injury to her hand from the said knife. He identified knife as M.O. 1. Before the Court, the witness shows that there were five stitches put to injury and even he has shown the injury sustained on the thumb finger. In the cross-examination, though it was lengthy, except making suggestions nothing has been elicited from his mouth to disbelieve his statement that he was also injured in the said incident by the accused. The evidence of P.W. 2, injured Ravi, goes to show that he sustained injury at the hands of accused person. Even P.W. 1 has turned hostile. The evidence of the Doctor and injury certificate make it clear that she has also sustained injuries at the hands of accused person. P.W. 3-one Madav, the neighbour who is also an eye-witness to the incident, has deposed in his evidence that accused said that he will see, he assaulted Shailaja by knife which was brought from his house; when Ravi went ahead, he assaulted Ravi also. In para 3 of his deposition Madhav-P.W. 3, also deposed that at the time of galata, injury was caused to the hands of the wife of deceased and in that connection, she was also treated in the hospital. Even though the accused assaulted Ravi in order to commit his murder but because of the grace of the God he survived. Even he deposed that had he gone ahead, it was very difficult for his survival also. He identified the weapon as M.O. 1, he also deposed in his evidence that for better treatment Ravi was shifted to KMC Hospital, Manipal. From this evidence, it could be seen that the case of the prosecution is supported by the injured eyewitnesses and also the documents i.e. wound certificates-Ex. P. 10 and P. 11, oral evidence of the doctor and regarding post-mortem report also doctor who conducted post-mortem examination deposed before the Court and he has deposed the cause of death also. 21. The learned Sessions Judge having considered all these aspects carefully has come to the conclusion that prosecution proved charges under Sections 307 and 302 of Indian Penal Code and accordingly, he convicted the appellant for both the charges. Considering all these materials, I do not find any illegality in judgment passed by the learned Sessions Judge. 21. The learned Sessions Judge having considered all these aspects carefully has come to the conclusion that prosecution proved charges under Sections 307 and 302 of Indian Penal Code and accordingly, he convicted the appellant for both the charges. Considering all these materials, I do not find any illegality in judgment passed by the learned Sessions Judge. The appellant-accused has failed to make out his defence and failed to make out any infirmity in the judgment passed by the learned Sessions Judge. There are no grounds made out before this Court to interfere with the judgment and order passed by the Court below. No merit in the appeal. Accordingly, appeal is hereby dismissed.