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2019 DIGILAW 561 (KAR)

Srinivasa v. State Of Karnataka

2019-03-02

JOHN MICHAEL CUNHA, SREENIVAS HARISH KUMAR

body2019
JUDGMENT : Sreenivas Harish Kumar, J. - These two appeals arise from the judgment of the II Addl. District and Sessions Judge, Tumkur in S.C. No. 10/2014. Cri.A.No.1493/ 2015 is filed by accused No. 1 questioning the judgment of the trial court convicting him for the offences under section 302 and section 498A of IPC and the order of sentencing him in connection with said offences. Crl.A. No.881/ 2015 is filed by the State questioning the correctness of acquittal of accused No. 2 in relation to offence under section 498A of IPC. 2. The prosecution case in brief is as follows: One Rajendrakumar alias Chandrappa/ PW-2 gave first information to the police with regard to death of his sister Dayavathi. According to Ex.P5, the first information report, accused No. 1 and deceased Dayavathi were loving each other. Despite opposition in their families for their marriage, they got married in a temple. A year after their marriage, deceased Dayavathi started going to her parents' house and whenever she went to her parents' house, she used to complain against her husband saying that he would come home taking liquor, beat and abuse her suspecting her fidelity. Dayavathi became pregnant and it ended in miscarriage. It is stated in the complaint that accused Nos. 1 and 2 used to harass her by saying that she was unable to bear a child. The deceased used to go to her parents' house in the morning to bring milk. On 06.11.2013, she did not go to her parents' house. Therefore PW2 went to his sister's house at about 10.00 a.m. He saw his sister sleeping. He tried to wake her up, but she did not respond. He returned to his house and brought his parents. Then they came to know that Dayavathi was dead. They noticed injury marks on the neck portion and on the left shoulder. They suspected that on the previous day night the husband and wife might have quarrelled and that the first accused, after killing his wife, might have left the house. After registration of the complaint, police held investigation and laid charge sheet against both the accused for the offences under sections 498A, 302 read with section 34 of IPC. 3. They suspected that on the previous day night the husband and wife might have quarrelled and that the first accused, after killing his wife, might have left the house. After registration of the complaint, police held investigation and laid charge sheet against both the accused for the offences under sections 498A, 302 read with section 34 of IPC. 3. The trial court conducted trial and after going through the evidence of witnesses examined on behalf of the prosecution, came to the conclusion that prosecution was not able to prove its case against accused No. 2 with regard to offence under section 498A of IPC and therefore acquitted accused No. 2 of the said offence. However, the Trial Court came to the conclusion that the prosecution was able to prove its case against accused No. 1 for the offence under sections 498A and 302 of IPC. For the offence under section 498A, first accused was sentenced to undergo rigorous imprisonment for six months and pay fine of Rs. 2,000/- and in default, to undergo simple imprisonment for one month. In relation to the offence under section 302, IPC, he was sentenced to life imprisonment and directed to pay fine of Rs. 50,000/-. He was also directed to undergo simple imprisonment for a period of six months in case he would default in paying fine amount. Out of the fine amount, Rs. 30,000/- was directed to be paid to the father of the deceased towards compensation. 4. We have heard Sri. D. Nagaraja Reddy, learned advocate appearing for the appellant in Crl.A. 1493/2015, Sri. Vijaya Kumar Majage, learned Addl. State Public Prosecutor and also Sri. Patel D. Karegowda, learned advocate appearing for the respondent in Cri.A.881/ 2015. We have perused the records. 5. Sri Nagaraja Reddy, learned advocate for the appellant i.e. accused No. 1 argues that the Trial Court has erred in believing the testimonies of the prosecution witnesses, particularly PW-2, PW-3 and PW-7. PW-2 is the brother, PW-3 is the mother and PW-7 is the father of the deceased and therefore they are interested witnesses. PW-4 is a neighbour, PW-6 is the aunt of the deceased and their evidence also discloses existence of enmity between them and the accused and therefore their evidence should not have been considered. PW-2 is the brother, PW-3 is the mother and PW-7 is the father of the deceased and therefore they are interested witnesses. PW-4 is a neighbour, PW-6 is the aunt of the deceased and their evidence also discloses existence of enmity between them and the accused and therefore their evidence should not have been considered. He argues that according to the prosecution, incident took place on 05.11.2013 at about 9.30 p.m. Ex.Pl is the post-mortem report in which it is clearly mentioned about absence of rigor-mortis. Post-mortem was conducted at 7.30 p.m. on 06.11.2013. It was PW-1 who conducted the post-mortem examination. If the evidence of PW-1 is examined in the light of the contents of Ex.P1, it is possible to say that death did not take place at the time and date projected by the prosecution. It is the clear evidence of PW-1 that it takes two to three hours for rigor mortis to set in and another twelve hours to spread over entire body and then twelve hours to pass off. Since rigour mortis was not present it is not possible to say that death took place at about 9.30 p.m. on 05.11.2013. The Trial Court has not noticed this aspect of the matter. 6. He also further argued that accused No. 1 was not present in the house on 05.11.2013. It is admitted that accused No. 1 is a tractor driver and he had gone out of the house in connection with his work. He has stated so when he was examined under Section 313, Cr.P.C., 1973 It is possible to say that accused No. 1 was not present in the house at the time of the alleged incident and therefore the trial court should not have come to the conclusion that death was caused by accused No. 1. 7. It is further argued that the evidence on record does not disclose the cruelty meted out to the deceased. There is no evidence with regard to demand for dowry or for any valuable property. For this reason, Section 498A of Indian Penal Code does not get attracted. In support of his argument, he has placed reliance on the judgment of the Kerala High Court in the case of Appukuttan vs. State of Kerala, (2018) 3 Crimes (HC) 188 : (2018 Cri LJ 1959 (Ker). For this reason, Section 498A of Indian Penal Code does not get attracted. In support of his argument, he has placed reliance on the judgment of the Kerala High Court in the case of Appukuttan vs. State of Kerala, (2018) 3 Crimes (HC) 188 : (2018 Cri LJ 1959 (Ker). Therefore, he argued that the conviction recorded against accused No. 1 should be set-aside and accused No. 1 should be left free. 8. Sri. Vijay Kumar Majage, learned Addl. SPP appearing for State argues that merely because the prime witnesses are close relatives of the deceased, it cannot be inferred that they are interested witnesses. The evidence of these three witnesses have not been discredited in their cross-examination. A perusal of evidence of these three witnesses clearly shows that the deceased was subjected to cruelty for the reason that she was not able to bear a child. There is ample evidence to show that the evidence given by PWs-4, 6 and 10 clearly establishes that quarrel used to take place between accused No. 1 and the deceased. Even the evidence of PWs-4, 6 and 10 have not been assailed in their cross-examination. Therefore, there stands un impeached testimony of these witnesses to come to the conclusion that the deceased was being subjected to cruelty. Further, he refers to the testimonies of PWs-8, 9 and 10 to argue that in the odd hours of 05.11.2013, accused No. 1 was seen at a place far away from his house. This conduct of accused No. 1 is very important to be considered. Death took place at about 9.30 p.m. on 05.11.2013. If accused No. 1 was seen at a far away place, the only inference that could be drawn is that after committing the crime, he might have left the house. Accused No. 1 has set up 'alibi' and he has failed to prove it. The moment he takes up the plea of 'alibi', the entire burden shifts on accused No. 1 to establish it; failure of which leads to accept the prosecution case. Therefore looked from any angle, the prosecution has been able to prove its case. 9. Sri. Vijay Kumar further argues that the trial court should not have acquitted accused No. 2 of the offence under section 498A of Indian Penal Code. Therefore looked from any angle, the prosecution has been able to prove its case. 9. Sri. Vijay Kumar further argues that the trial court should not have acquitted accused No. 2 of the offence under section 498A of Indian Penal Code. It is his argument that the evidence of the material witnesses clearly shows that even accused No. 2 was harassing the deceased. The trial court has simply come to the conclusion that evidence against accused No. 2 is insufficient. This conclusion is totally unfounded and therefore, the judgment of the trial court insofar as it relates to acquitting accused No. 2 should be set aside and he must be held guilty of the offence under section 498A of Indian Penal Code and suitably sentenced. 10. Sri. Patel D. Karegowda appearing for accused No. 2 in Cri. A. No. 881/2015 refers to para 20 of the judgment of the trial court to argue that the trial court has very well appreciated the evidence to hold that the offence under section 498A Indian Penal Code as against accused No. 2 does not get established. The trial court has considered the evidence of PWs-2, 3 and 7 and has believed their evidence. There is no dispute that accused No. 2 was working as a waterman and he used to go to several villages for supplying water. Actual participation of accused No. 2 can be held to be doubtful. While giving evidence, just because some of the witnesses have made a omnibus statement that the accused were harassing the deceased, it cannot be construed that it is clear evidence against accused No. 2 also. The entire evidence, if assessed in right perspective does not disclose any offence against accused No. 2 and therefore, the trial court has come to the right conclusion. 11. On re-appreciation of evidence, we find that the trial court is justified in acquitting accused No. 2. PW-2 is the complainant. Though in his examination-in-chief, it is stated by him that accused Nos. 1 and 2 used to beat and scold the deceased, the evidence of PW-3 is to the effect that it was only accused No. 1 who used to harass the deceased. PW-3 has stated in her examination-in-chief very clearly against accused No. 1 only. PW-7 is the father of the deceased. He imputes only accused No. 1. 1 and 2 used to beat and scold the deceased, the evidence of PW-3 is to the effect that it was only accused No. 1 who used to harass the deceased. PW-3 has stated in her examination-in-chief very clearly against accused No. 1 only. PW-7 is the father of the deceased. He imputes only accused No. 1. More than the evidence of PW.2, the evidence of neighbour PW-4 and PW-6 assumes importance. PW-4 has stated that it was accused No. 1, who used to scold and beat the deceased. The reason for harassment is that the deceased became pregnant and the pregnancy did not last long. It ended in a miscarriage. Therefore, accused No. 1 used to take objection as she was unable to bear a child and even he was suspecting fidelity of his wife-deceased. PW-6 is the Aunt of the deceased. Her evidence is also against accused No. 1 only. Nothing is stated against accused No. 2. 12. Therefore, if the evidence of these witnesses is assessed, we find nothing against accused No. 2 insofar the offence under Section 498A of Indian Penal Code is concerned. Recording of acquittal of accused No. 2 is found to be proper. We find no infirmity in the reasons given by the trial court in acquitting accused No. 2. 13. As discussed above, it was accused No. 1, who used to harass his wife-deceased. This part of evidence has not been assailed. With regard to offence under Section 302 Indian Penal Code is concerned, much has been argued by Sri. D. Nagaraja Reddy, learned counsel for accused No. 1- appellant in Cri.A.No. 1493/2015. If the judgment of the trial court is perused, it has given reasons that the case of the prosecution is based on circumstantial evidence. The evidence of PW-1-Dr. R. Girish discloses that it was a case of homicidal death. The trial court has discussed the aspect of 'motive'. The deceased became pregnant and later on she suffered an abortion. This prompted accused No. 1 to insult and ill treat her. This only shows the act of mental cruelty meted out to the deceased. Apart from that, PW-1 has noticed presence of four external injuries. They were all ante-mortem. The evidence of PW-10 shows that there took place a quarrel between husband and wife i.e., accused No. 1 and the deceased on the date of the incident. This only shows the act of mental cruelty meted out to the deceased. Apart from that, PW-1 has noticed presence of four external injuries. They were all ante-mortem. The evidence of PW-10 shows that there took place a quarrel between husband and wife i.e., accused No. 1 and the deceased on the date of the incident. There is clear evidence of PW-10 that on 05.11.2013 at 7.30 p.m., first accused was quarrelling with his wife. They were quarrelling upto 9.00 p.m. At about 9.30 p.m., the quarrel came to an end. At about 10.00 p.m., accused No. 1 went out of the house. The light was switched off. 14. PW-4-a neighbour has also stated that accused No. 1 used to suspect his wife/deceased if she would go out of the house. By increasing the volume of television, they used to quarrel and once when she went to their house to enquire about the quarrel, and at that time she was asked by accused No. 1 that she should not interfere in their family matters. 15. The testimonies of these two witnesses viz., PW-4 and PW10 clearly establish the fact that accused No. 1 used to pick up quarrel with his wife/deceased. We find no good reason to disbelieve the testimonies of these witnesses. Rightly the trial court has believed their evidence. 16. Sri. D. Nagaraj Reddy, learned counsel has referred to the judgment of the Kerala High Court in the case of Appukuttan (2018 Cri LJ 1959 (Ker) (supra). He has placed reliance on this decision because according to him the evidence does not disclose any demand made by the first accused for dowry or valuable property and therefore the prosecution case that the deceased was subjected to cruelty, cannot be believed. We do not think that this decision is helpful to the first accused. Section 498A of Indian Penal Code consists of two limbs that can be made out from explanation part. We do not think that this decision is helpful to the first accused. Section 498A of Indian Penal Code consists of two limbs that can be made out from explanation part. 'Cruelty' means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. In this case what is mainly forthcoming is that the accused started harassing his wife when she suffered an abortion. He started insulting her saying that she was unable to bear a child. This kind of harassment amounts to mental cruelty which falls within the scope of section 498A. 17. Since it is much argued that the 'date' and 'time' of the incident of murder is disputable and it gives scope for suspecting the prosecution case, it is necessary to deal with that aspect. PW-1 Doctor who conducted the postmortem examination has given an opinion that the death might have taken place about 24 to 48 hours prior to the date of post-mortem examination. In Ex-Pi, the post-mortem report, it is mentioned that rigor mortis was absent and this is one reason for disputing the time of the incident. We find that the trial court has given cogent reasons. Mere absence of rigor mortis is not a matter to be taken into consideration for disbelieving the time of death. Setting in of rigor mortis depends on the climatic and bodily conditions of the deceased. The trial court has expressed an opinion that medical evidence is not sacrosanct. We find no infirmity in the said finding, because, the evidence given by the other witnesses is very clear to the effect that they saw accused No. 1 and the deceased quarrelling with each other in the evening of 05.11.2013. 18. It is argued that accused No. 1 was not present in the house on 05.11.2013. That means, accused No. 1 has set up a plea of alibi. 18. It is argued that accused No. 1 was not present in the house on 05.11.2013. That means, accused No. 1 has set up a plea of alibi. Even when he was examined under Section 313, Cr.P.C., 1973 he has stated that he used to go out of his house in connection with his work and used to come to his house two days in a week. He had gone to a village called Yelanodvi on that day and he returned to his house learning from some others about the death of his wife. If this is the case of accused No. 1, nothing prevented him from giving a suggestion to the witnesses at least that on the date of the incident, he was working in a village at Yelanodvi. We find no suggestion to that effect. Simply taking a stand at the time of examination under Section 313, Cr.P.C, 1973 does not help accused No. 1 in any way. He could have examined a witness in proof of what has been stated by him when he was examined under Section 313, Cr.P.C., 1973 Therefore, we record a finding that plea of alibi has to fail. 19. Another point argued is that some miscreants might have entered the house of the deceased and might have committed her murder. But this defence also fails because when PW-2, the brother of the deceased entered the house of the accused, he did not see the main door being broken. It was just closed. If deceased was alone in the house on that day, she should have latched the door from inside. If any third person enters the house and gains entry forcibly, obviously, the main door should be broken open or they should gain entry by breaking open a window. No evidence to that effect is forthcoming. 20. Rather there is evidence of PW8, PW9 and PW10 who have clearly stated about seeing accused No. 1 at a far away place during odd hours of the night. This evidence fortifies the case that accused No. 1 might have gone out of his house after killing his wife. Inference to be drawn is that accused No. 1 was very much present in the house at the time of incident. There is evidence that accused No. 2 was not present in the house. This evidence fortifies the case that accused No. 1 might have gone out of his house after killing his wife. Inference to be drawn is that accused No. 1 was very much present in the house at the time of incident. There is evidence that accused No. 2 was not present in the house. Therefore, it was only accused No. 1, who was present in the house. For this reason, he alone should explain as to what happened inside the house. 21. The trial court has held that section 106 of the Indian Evidence Act could be applied in a circumstance like this. We endorse this view. Adverse inference can be drawn against accused No. 1 for his failure to account for as to what took place inside the house when he and the deceased were present inside the house. We find that the trial court has very well appreciated the evidence for finding accused No. 1 guilty of offences charged against him. We do not see a good reason to take a different view. 22. The above discussion takes us to conclude that both the appeals fail. We confirm the judgment of the trial court convicting and sentencing the accused No. 1 for the offences under section 498A and section 302, IPC.