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Karnataka High Court · body

2019 DIGILAW 1995 (KAR)

Bandarakalli Parasappa v. State of Karnataka

2019-09-11

P.G.M.PATIL, S.N.SATYANARAYANA

body2019
JUDGMENT : 1. The accused being aggrieved by the Judgment of conviction and order of sentence dated 26.10.2011 passed in Sessions Case No. 123 of 2009 on the file of Fast Track Court-III, Hospet has filed this appeal. 2. The case of the prosecution in brief is as follows: The complainant-Sri. Channabasappa performed the marriage of his youngest daughter-Halamma with accused Bandrakali Basappa, S/o.Halappa about 10 years back and she was living with him along with his mother-Chinnamma and his younger brother-Sangappa and doing coolie as well as agriculture work for their livelihood. The accused had a son and two daughters. The accused used to pick up quarrel with his wife-Halamma. Halamma's parents had advised him not to ill-treat her. These being the facts, on 08.07.2009 at 6.00 p.m. the accused returned to home and asked his wife-Halamma to give water, as there was little late in giving water, the accused with an intention of causing the death of his wife-Halamma assaulted on her head and other parts of the body with an iron kunte-kuda (an agricultural equipment) and caused grievous injuries to her and when his mother-Chiannamma tried to rescue Halamma, the accused assaulted her with the said weapon and caused injuries to her, consequences to the injuries caused by the accused his wife-Halamma died in the kitchen room of the house. The accused went away from the house along with weapon. 3. In this regard, the complainant-Channabasappa the father of deceased-Halamma filed complaint, on the basis of which Hirehadagali police have registered a case in Crime No.53 of 2009 and after investigation of the matter filed the charge sheet for the offences punishable under Sections 302 and 324 of Indian Penal Code (for short 'I.P.C.'). The accused has been in judicial custody since the date of his arrest on 10.07.2009. The learned Magistrate before whom the charge sheet was filed took the cognizance of the alleged offences and after complying with Section 207 of Cr.P.C committed the case to the Court of Sessions and on the receipt of the records the case was registered in Sessions Case No. 123 of 2009 on the file of Fast Track Court-III, Hospet. Accused was secured, he was represented by an advocate. 4. The trial Court Judge, after hearing both the sides, framed the charges against the accused. The accused denied the charges; therefore, the case was taken-up for trial. Accused was secured, he was represented by an advocate. 4. The trial Court Judge, after hearing both the sides, framed the charges against the accused. The accused denied the charges; therefore, the case was taken-up for trial. In order to prove the guilt of the accused, the prosecution has got examined eleven witnesses as PW-1 to PW-11 and got marked 15 documents as Ex.P-1 to Ex.P-15 and got identified M.O.1 to M.O.6. Thereafter, the statement of accused was recorded under Section 313 of Cr.P.C. on explaining the incriminating circumstances, which he has denied. The accused was called upon enter defence. However the accused has not chosen to adduce any evidence. Thereafter, the learned Sessions Judge heard both the sides and passed the impugned Judgment convicting the accused for the offences punishable under Sections 302, 324 of I.P.C. and he was sentenced to undergo imprisonment for life and also to pay a fine of Rs.5,000/-, in default of payment of fine, he shall undergo imprisonment for six months for the offence punishable under Section 302 of I.P.C. and no separate sentence was passed on him for an offence punishable under Section 324 of I.P.C, as the accused was sentenced to life imprisonment. 5. The accused being aggrieved by the impugned Judgment of conviction and order of sentence has filed this appeal. 6. Heard the learned counsel appearing for the appellant-accused and the learned Additional Special Public Prosecutor appearing for respondent-State. 7. Perused the entire record, the following points would arise for our consideration in this appeal: (a) Whether the death of deceased-Halamma is homicidal? (b) Whether the prosecution has proved beyond all the reasonable doubt that the accused committed murder of his wife- Halamma? (c) Whether the judgment under appeal is perverse, illegal and against the material on record and is liable to be set aside? 8. The oral evidence of the prosecution reveals that PW-1-Channabasappa is father of the deceased-Halamma, he set the law in motion by lodging the complaint as per Ex.P-1 after seeing the dead body of the deceased. PW-2-Rajasab and PW-3- B.Halappa, are the neigh borers of the accused and they are hearsay witnesses and they went to the house of the accused immediately after the incident and have scene the body of the deceased in the house of accused.P.Ws-2 and 3 have not fully supported the case of the prosecution. PW-2-Rajasab and PW-3- B.Halappa, are the neigh borers of the accused and they are hearsay witnesses and they went to the house of the accused immediately after the incident and have scene the body of the deceased in the house of accused.P.Ws-2 and 3 have not fully supported the case of the prosecution. PW-4-Renukamma is the witness to the inquest panchanama Ex.P-4, she is daughter in law of the complainant. PW-5-Dr.Guruswamy N.T. examined the mother of accused-PW-10-Bandrakalli Chinnamma and has issued Wound Certificate in respect of her as per Ex.P-5. PW-6-Dr.Shivakumar B., conducted postmortem on the body of deceased-Halamma and has issued postmortem report as per Ex.P-6 and he has also examined the weapon M.O.1 and has given opinion as per Ex.P.7. PW-7 -H.K.Manjunatha, Police Constable shifted the body of the deceased to the Government Hospital, thereafter he produced the clothes of the deceased which were seized under the panchanama Ex.P-8 and he has identified the said clothes in M.Os.2 to 4. PW-8- D.Hanumanthappa P.S.I., recorded the statement of PW-1 as per Ex.P-1 (complaint), registered the case in Crime No.53 of 2009 and submitted F.I.R. to the Court as per Ex.P-9 and thereafter he handed over the investigation to PW-11-Prakash Rathod, the then C.P.I. PW-9 - Kattimani Arjuna is a witness to the Ex.P-8and 10 panchanamas, he has not supported the case of the prosecution. However, in his cross-examination he has admitted regarding the panchanama drawn in the house of the accused and also regarding the recovery of the weapon from the accused. PW-10-Bandrakalli Chinnamma is the mother of accused and she is the only eyewitness for the incident, she has not fully supported the case of the prosecution. PW-11-Parakash Rathod the then C.P.I., is the Investigating Officer in the case. 9. In the first instance the prosecution has to prove that the death of the deceased-Halamma is homicidal and on proving the same, the prosecution has to establish that the accused has committed the homicidal death of his wife-Halamma. In order to bring home the offence under Section 302 of I.P.C., the prosecution mainly relies on the evidence of P.Ws-1, 5, 6, 8, 10 and 11 to prove the alleged incident and also that the death of deceased-Halamma is a homicidal death. Therefore, it is necessary to refer the evidence of these witnesses in order to appreciate the same. 10. Therefore, it is necessary to refer the evidence of these witnesses in order to appreciate the same. 10. PW-1-Channabasappa father of the deceased-Halamma set the law in motion by filing Ex. P-1-complaint. He has deposed that the marriage of his daughter was performed with the accused about 15 years back and they have three children. On 08.07.2009, he received information through telephone that the accused has committed the murder of his wife. Immediately, himself and his villagers came to the house of accused and found the dead body of his daughter, she had sustained injuries on her face and head. Thereafter, he went to the Police Station and filed the complaint as per Ex.P-1. He came to know that when the deceased-Halamma did not provide water to the accused immediately, he assaulted her with kunte-kuda and committed her murder. In his cross-examination, it is suggested that the deceased had gone to the upstairs of the house to collect the sarees, at that time she lost control and fell down on the 'stone bani' and sustained injuries, thereby succumbed to such injuries, he has denied the suggestion. 11. The evidence of PW-2 Rajasab and PW-3 B.Halappa is to the effect that they are neigh borers of the accused, according to them, they went to the house of the accused after the incident and they have not seen the alleged incident. Both these witnesses were treated as hostile and cross-examined by the learned Public Prosecutor. Their evidence is not of much important, except that they found the dead body of Halamma in the kitchen room of the house and the accused ran away from the house. PW-4 Renukamma has deposed about the drawing up of Inquest Panchanama on the body of deceased as per Ex. P.-4 which is not much disputed. 12. PW-5 Dr.Guruswamy N.T. has deposed that on 08.07.2009 P.C.No.973 Shantikumari brought one Chinnamma with a history of injury sustained due to assault. He examined her at 09.30 p.m. and found two injuries one incised wound over the left fore arm and another one is on the parietal region. Accordingly, he has issued Wound Certificate as per Ex. P.-5. 12. PW-5 Dr.Guruswamy N.T. has deposed that on 08.07.2009 P.C.No.973 Shantikumari brought one Chinnamma with a history of injury sustained due to assault. He examined her at 09.30 p.m. and found two injuries one incised wound over the left fore arm and another one is on the parietal region. Accordingly, he has issued Wound Certificate as per Ex. P.-5. There is no cross examination of this witness, thereby it is made out that PW-10-Chinnamma who is none other than the mother of accused, had sustained injuries on 08.07.2009 and it is the case of the prosecution that while she tried to rescue the deceased from the accused, the accused assaulted on her head and hand and caused the said injuries. Therefore, the evidence of this witness corroborates the case of the prosecution. 13. PW-6-Dr.Shivakumar B., the Medical Officer, General Hospital, Hoovinahadagali has deposed about conducting postmortem examination on the body of the deceased on the requisition of C.P.I. Hoovinahadagali and he has deposed that on examination of the body, he noticed that the rigor mortis was present, he noticed the following ten external injuries: "1. A deep lacerated wound over the center of head at fronto parietal junction 6X2X4 cm. with comminuted fracture of both bones (oblique). 2. Laceration of 5 X 2 cm. over the right central bone with linear fracture of right frontal bone. 3. Laceration of 2 cm. over the right eyebrow. 4. Linear cut injury over the upper lip below the nose 13 X 2 X 4 cm. with fracture of comminuted palatine process of maxilla and loss of upper 4 incisor tooth. 5. Laceration of 3 X 1 cm. on root of nose fracture of nasal bone junction. 6. Contusion injury of 6 cm. on the chin horizontal mark towards left. 7. Abrasion of 2 cm. over the both lower eyelids on cheek. 8. Abrasion of 3 X 2 cm. on left clavicle at middle l/3rd. 9. Laceration with contusion of 3 cm. on back of chest 6 cm., below the hair line. 10. Contusion injury of 6 cm. on right side of neck at middle between ear lobe and clavicle obliquely situated at deeper dissection contusion of sterna mastoid muscle present, and all these injuries are anti mortem in nature." He has further stated that the death of Halamma was caused due to neurogenic shock, as a result of injuries to head. 10. Contusion injury of 6 cm. on right side of neck at middle between ear lobe and clavicle obliquely situated at deeper dissection contusion of sterna mastoid muscle present, and all these injuries are anti mortem in nature." He has further stated that the death of Halamma was caused due to neurogenic shock, as a result of injuries to head. Accordingly, he has issued postmortem report as per Ex. P.-6. He has further stated that on the requisition of the C.P.I. Hoovinahadagali he examined Kunte-kuda (agriculture equipment) on 01.09.2009 and has issued his opinion as per Ex.P.-7 and also identified the said weapon in M.O.-l. He has stated that injuries found on the body of the deceased could be caused by the said weapon. In his cross-examination, he has denied that the deceased might have sustained the said injuries by fall from the roof of the house. He has denied that, M.O.-1 was not produced before him and he has not given his opinion about the weapon. Absolutely, there is no denial of his evidence that the death of deceased is due to neurogenic shock, as a result of injuries to the head. 14. The evidence of PW-7 H.K.Manjunath, Police Constable is that he shifted the body of the deceased to the Government Hospital and thereafter he produced the clothes found on the body of deceased before the Investigating Officer (PW-11). 15. PW-8- D.Hanumanthappa, P.S.I, has deposed that he was in charge of the Police Station, on 08.07.2009 at 07.15 p.m. PW-1-Channabasappa came to Police Station lodged his oral complaint which is reduced into writing as per Ex.P.-1. On the basis of the said complaint, he registered Crime No.53 of 2009 and he submitted F.I.R. to the jurisdictional Magistrate as per Ex.P-9. Thereafter, he handed over the further investigation of the case to PW-11. In the cross-examination, he has denied that PW-1 has not stated before him as per the complaint (Ex.P-1) and that PW-1 has given a false complaint. 16. PW-9 Kattimani Arjuna is examined as a witness to Ex.P-8 panchanama, under which the clothes of the deceased were seized, Ex.P-10 under which the weapon was seized at the instance of the accused and Ex.P-11 the panchanama drawn in the house of the accused. However, he has not supported the case of the prosecution; he was treated as hostile and cross examined by the learned Public Prosecutor. However, he has not supported the case of the prosecution; he was treated as hostile and cross examined by the learned Public Prosecutor. In his cross-examination, he has admitted that the police have drawn the panchanama in the house of accused as per Ex. P. 11 and seized the blood stained mud and sample mud and he has signed the panchanama in the house of accused. In his chief-examination he has clearly deposed that the accused took himself and the police to a place on Ishapur road and produced one kunte-kuda which was hidden under the bushes and the police have seized the same and drawn the panchanama as per Ex.P-10, which he has signed. He has also deposed that the police have seized the clothes of deceased by drawing panchanama at Ex. P.-8 and he has identified M.Os.-1 to 4. Therefore, the evidence of this witness supports the case of the prosecution so far as recovery of the weapon M.O.1 at the instance of the accused which is admissible. 17. The evidence of PW-10-Bandrakalli Chinnamma the mother of accused is material, according to the prosecution she is the only eyewitness to the incident. In her chief-examination, she has deposed that the accused is her son and deceased is the wife of accused and they have got three children. She has further stated that two and half years back when she was in the house at about 5.30 p.m. the children came from the school she just went out of the house and by the time she returned to the house her daughter in law Halamma was laying with injuries, she do not know how she sustained injuries. She has further stated that the police took her son namely the accused from the house. Therefore, she was treated as hostile and cross examined by the Public Prosecutor, in her cross-examination she has admitted that herself, accused and deceased and their 3 children were residing together, she do not know whether there used to quarrels between the accused and his wife. But she has admitted that she had advised the accused not to quarrel with his wife. But she has admitted that she had advised the accused not to quarrel with his wife. When it was suggested to her that about two years two months back on one day the accused returned to the house at 6.00 p.m. from the field and asked his wife to give water to him, she has stated that she do not know the same, but she has not denied the same. Further, it was suggested that when the deceased was little late in giving water to the accused, he took up kunte-kuda and assaulted his wife, she has stated that she do not know the same as she was sleeping in the house. When it was suggested to her that while the accused was assaulting his wife, she tried to rescue her (Halamma) and in that process, the accused assaulted on her (PW-10) head and hand, she has admitted that as the accused assaulted her with kunte-kuda and she sustained injuries on her left wrist and on the head and she lost her consciousness, she do not know, if the accused ran away from the house along with weapon after committing the murder of his wife. She has denied that she has given statement before the Investigating Officer as per Ex.P-12. Therefore, the evidence of this witness though not fully corroborates the case of the prosecution, her evidence is sufficient to prove that the incident took place in the house of accused and the presence of the accused at the time of incident and that she was also present and sustained injuries due to the assault by the accused is fully established. In this way of the matter, the evidence of this witness is acceptable to the extent of proving these facts. 18. PW-11 Prakash Rathod the then C.P.I, of Hoovinahadagali Police Circle is the Investigating Officer in the case. He has deposed about the investigation done by him. He has specifically deposed that on 10.07.2009 his staff produced the accused before him at 9.00 a.m. he arrested the accused and recorded his voluntary statement as per Ex.P.-13 and the accused gave the voluntary statement that he has kept the weapon in the bushes and he would produce the same. Thereafter, the accused led himself and panchas to the place where the accused had hidden the weapon in the bushes and produced the same. Thereafter, the accused led himself and panchas to the place where the accused had hidden the weapon in the bushes and produced the same. The said weapon is kunte-kuda an agricultural equipment. He seized the same by drawing panchanama as per Ex.P.-10 and he has identified the weapon in M.O.-1. He has stated about the recording of statement of witnesses including the statement of PW-10 as per Ex.P-12. Thereby the statement of PW-10 as per Ex.P.-12 is proved. The evidence of this witness so far as the voluntary statement of the accused as per Ex.P-13 in furtherance of which recovery of M.O.-1 weapon at the instance of accused is admissible under Section 27 of the Indian Evidence Act, 1872. 19. The evidence of the prosecution discussed above is sufficient to prove that the death of the deceased-Halamma is homicidal death. The defence of the accused as suggested to PW-1 that the deceased fell down from the roof of the house and sustained injuries is not at all probable and accused has never produced any material to support his defence. It is necessary to observe that when the accused was examined under Section 313 of Cr.P.C. and his statement was recorded, he has simply denied the incriminating evidence and when question No.36 as to "Do you have anything to say? He has replied as 'nothing' and so also question No.37 he has stated that he has no defence. 20. The evidence of PW-6 Dr.Shivakumar D., who conducted the postmortem examination on the body of deceased and has issued report as per Ex.P-6 and opinion about the weapon as per Ex.P-7 coupled with the photographs of the body of deceased at Ex.P.2(a) to (f) goes to show that the deceased had sustained fatal injuries on face and head and other parts of the body as deposed by PW-6. The evidence of PW-10 Chinnamma the mother of the accused is also sufficient to prove the presence of the accused in the house at the time of incident and that when she tried to rescue the deceased the accused assaulted on her left hand and head with the same weapon M.O.-1 and thereby she sustained injuries as stated in Ex.P.-5, it is clear from the evidence of PW-5 who examined PW-10 and his evidence is not at all disputed. When it is proved by the prosecution that the incident took place in the house of the accused and the death of deceased occurred in the house of accused and that the accused was present at the time of incident in his house, the burden shifts on accused to explain how the deceased sustained injuries and died in his house. Section 106 of the Indian Evidence Act, 1872 provides as follows: "106. Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 21. Therefore, apart from PW-10 the facts as to death of the deceased caused in the house of accused is especially within his knowledge and therefore, the burden of proving that fact lies upon him. It is for the accused to explain as to how the deceased sustained injuries and died in his house. On the other hand, accused has not at all made any attempt to explain the same either in his statement recorded under Section 313 of Cr.P.C. or by producing defence evidence. Under these circumstances, we have no hesitation to hold that the death of the deceased is homicidal death and that the accused committed the murder of his wife-Halamma and further that the Judgment under appeal is neither perverse nor illegal nor is against the material on record and as such is sustainable in law. 22. The learned counsel for the appellant-accused relying on the Judgment in the case of Surain Singh vs. State of Punjab, AIR 2017 SC 1904 submitted that the incident in question occurred out of grave and sudden provocation and therefore the offence would fall under exception 4 to Section 300 of I.P.C. 23. We have examined entire material on record, absolutely there is no material to show that the incident in question took place out of grave and sudden provocation. On the other hand, the prosecution has established beyond all reasonable doubt that the accused with an intention to commit the murder of his wife, assaulted her with a deadly weapon M.O-1 and committed her murder. Under these circumstances, this Court holds that the appeal being devoid of merits is liable to be dismissed. The points of consideration are answered accordingly. Under these circumstances, this Court holds that the appeal being devoid of merits is liable to be dismissed. The points of consideration are answered accordingly. In the result, we proceed to pass the following: ORDER: The Criminal Appeal filed under Section 374(2) of Criminal Procedure Code is hereby dismissed. Consequently, the judgment of conviction and order of sentence dated 26.10.2011 passed in Sessions Case No. 123 of 2009 on the file of Fast Track Court-III, Hospet is hereby confirmed. 24. Send back the lower court records forthwith.