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2019 DIGILAW 1930 (KAR)

Eswara @ Eswarachari v. State of Karnataka

2019-09-03

S.SUNIL DUTT YADAV, SREENIVAS HARISH KUMAR

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JUDGMENT : 1. The accused, who has been convicted for the offences punishable under Sections 302 and 498-A of Indian Penal Code and has been sentenced to undergo imprisonment for a period of one year as regards the offence under Section 498-A of IPC with fine of Rs.5,000/- and sentenced to life imprisonment with fine of Rs.10,000/- as regards the offence under Section 302 of IPC, has preferred this appeal. A complaint came to be filed by PW-1, who is the brother of the deceased stating that the deceased was given in marriage to the accused about 19 years prior to the incident. It is stated that in the wedlock they had a girl child who died about five years prior to the incident. It is stated that for the past about 10 years the accused was harassing the deceased to bring money and property from her father. It is also alleged that on several occasions the brothers of the deceased counselled the accused, but the harassment continued. The complainant has stated that on 12.05.2012 at about 12:30 p.m., the accused had called the complainant and informed them that the deceased was suffering from a viral infection and doctor was called to treat the deceased. It is further stated that, at about 9:30 p.m. when PW-1 was contacted, it was informed that the deceased had died. It is stated that the complainant had gone to the deceased's house and noticing the death of his sister complaint came to be filed stating that the accused had killed the deceased by assaulting her with a sickle and also suffocating her by use of a pillow and accordingly requested for appropriate action to be taken. On the basis of the said report, on 13.05.2012 at about 11:30 a.m., an FIR came to be registered and the Police conducted investigation and filed a charge sheet. Subsequently the matter came to be committed to the Court of Sessions and the case came to be tried in S.C.No.296/2012. Charges having been framed and read out and the accused not having pleaded guilty, matter has been set out for trial. 2. The prosecution examined 24 witnesses as PW-1 to PW-24 and marked Exhibits P1 to P24. Material objects MO-1 to MO-7 were identified and marked. Charges having been framed and read out and the accused not having pleaded guilty, matter has been set out for trial. 2. The prosecution examined 24 witnesses as PW-1 to PW-24 and marked Exhibits P1 to P24. Material objects MO-1 to MO-7 were identified and marked. The 313 statement of the accused was recorded and the accused led his defence evidence through DW-1 to DW-3 and also submitted his written submissions. The Trial Court after a detailed consideration has convicted the accused for the offence under Section 498-A and 302 of IPC and sentenced the petitioner to imprisonment as referred to above. 3. The appellant has assailed the impugned judgment of conviction contending that the witnesses have not supported the version of the prosecution, that PW-9 Syed Aslam, PW-10 Babu and PW-13 Dr. Nanjundaiah have been treated as hostile witnesses, that the witnesses who have supported the case of the prosecution belong to the family of the deceased and being interested witnesses, their evidence has not been appreciated in a proper manner; that the case rests on circumstantial evidence, the call records were not obtained, there was no previous complaint regarding harassment of the deceased for dowry, the non-examination of the mother of the accused who is stated to be present in the house, creates doubts in the story of the prosecution and it cannot be said that the prosecution case has been proved beyond reasonable doubt. 4. Sri. Vijayakumar, B. Majage, learned Additional State Public Prosecutor has however submitted that no case is made out for interference of the judgment of the trial Court. 5. As regards the presence of the accused in the house proximate to the incident, the finding of the trial Court cannot be faulted. PW-9 Syed Aslam, PW-10 Babu and PW-13 Dr. Nanjundaiah clearly depose that the accused was present in the house and that the doctor was summoned in order to examine the deceased. In fact the answer to Question No.24 while recording the answers to the queries under Section 313 of Cr.P.C. the accused has admitted that he had called PW-5 and informed him that his sister was not keeping well and that he had called the doctor for necessary treatment. Though the witnesses PW-9 and 10 and 13 have been treated hostile, such portion of their evidence consistent with the case of the prosecution can be relied upon. Though the witnesses PW-9 and 10 and 13 have been treated hostile, such portion of their evidence consistent with the case of the prosecution can be relied upon. The fact that PW9 and PW10 had brought the doctor PW-13 to the house of the accused is consistent with the story of the prosecution to the extent that the accused was at home. Further the evidence of PW13 that he has examined the deceased remains uncontroverted. 6. The fact that death occurred due to the injuries in the house of the accused and that the accused was present can be said to have been proved on the basis of the evidence available. The only inmates in the house were the mother of the deceased and the accused. The finding of the trial court that non-explanation by the accused about the death of his wife could be held against him as he failed to discharge the burden placed on him as per Section 106 of the Evidence Act, cannot be faulted. 7. The death having occurred in the house of the accused has been proved. The post mortem report which is marked as Exhibit P21 opines that "death is due to shock and intra-cranial hemorrhage due to head injury sustained." This would rule out the case of the prosecution that death was also due to strangulation by hanging of the deceased as is sought to be made out. However, in light of the post mortem report, what remains to be taken note of for the purposes of conviction and sentence, is the circumstances under which injury to the head was caused. Admittedly, there is no eye witness who has seen the commission of the offence and the case rests on circumstantial evidence. Having accepted the case of the prosecution on the basis of available evidence to the extent that the accused was present, that death had occurred in the house of the accused also not being controverted and the accused having failed to discharge the burden under Section 106 of explaining the death of the deceased in his house which is in the sole knowledge of the accused, would lead to the finding that the accused was guilty of homicide as held by the trial court. 8. 8. The question is whether the present facts make out the commission of an offence under Section 300 punishable under Section 302 or whether the accused is said to be guilty of committing culpable homicide not amounting to murder under Section 299 is to be determined. 9. As regards the above question it is the intention/knowledge of the accused which will determine as to whether it is a case of murder or culpable homicide not amounting to murder. In the absence of direct evidence, the following facts would throw light on the intention:- (1) Despite availability of sickle (MO-1) fatal head injury stated to be the cause of death was not by the sharp end of the sickle. (2) There were contusions over the right shoulder and middle of the right thigh, back of the head. It was suggested by the prosecution to PW22 (doctor who conducted post-mortem) that the contusion injuries on the thigh and shoulder could be caused by blunt side of the sickle. This circumstance would indicate that the accused though had an opportunity to use the sharp end of the sickle, had abstained to do so. (3) The contusion mark found on the back of the head is stated to have led to intracranial hemorrhage and such contusion according to PW22 might have been caused by hitting the head of the deceased against the wall. (4) The accused has called the doctor (PW- 13) through PW 9 and 10 for the purpose of treatment of the deceased which also remains uncontroverted. (5) In the absence of any eye-witness who has seen the commission of the offence, the intention of the accused as gathered from a holistic appreciation of the bundle of facts would indicate that there was no intention to cause death of the deceased as contemplated under Section 300. The death is not a consequence of any pre-meditated act of the accused as the accused had not brought any weapon from outside the house; the weapon used to cause the contusion injuries on the shoulder and thigh was available in the house as the petitioner was a blacksmith; the sharp end of the sickle was not used for inflicting injuries; the accused had called for the doctor for necessary treatment of the deceased prior to death. (6) It is to be noted that burden of the prosecution would remain irrespective of failure of the accused to explain the incriminating circumstances as contemplated under Section 106 of the Indian Evidence Act. (7) Where culpable homicide is not murder, punishment is to be dealt with under Section 304 of IPC. In the present case, the only injury that has resulted in death is the head injury. The manner of infliction of head injury is only an inference that has been drawn. Though the said injury was likely to cause death as contemplated under 299, it cannot be said to be sufficient in the ordinary course of nature as contemplated under clause thirdly of Sec 300. It is further to be noted that the prosecution has not elicited from PW 22, who is the doctor as to whether the injury caused on the head was sufficient in the ordinary course of nature to cause death. In light of the prosecution not being able to discharge their burden as regards the proof of offence as contemplated under Section 300, looking into the circumstances as mentioned in Para 5, it would be an appropriate case to alter conviction from the offence punishable under Sec 302 to one under Sec 304 Part II. 10. Accordingly, the appeal is allowed in part and the conviction of the petitioner under Section 302 of IPC is altered to a conviction of the accused under Section 304 Part II of IPC. Taking note of the fact that the appellant has been in custody from 16.05.2012, it would be appropriate that the sentence for the offence would be the time spent in custody and accordingly, the appellant is deemed to have served his sentence noticing the time spent in custody. However, the sentence regarding fine would remain intact. In view of the above, the Jail Authorities to release the appellant forthwith, if he is not required in any other case.