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2020 DIGILAW 960 (KAR)

Basappa Tippanna Murkumbi v. State Of Karnataka

2020-06-03

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - The present appeal has been preferred by the appellant accused challenging the judgment of conviction and order of sentence passed by the I Additional District and Sessions Judge, Dharwad, sitting at Hubballi in Sessions Case No.70/2012 dated 09.01.2014. 2. We have heard the learned counsel Smt.Anuradha Deshpande, who has been appointed as a Standing Counsel from the Legal Services Authority, High Court of Karnataka, Dharwad Bench, Dharwad and the learned Additional S.P.P. Shri V.M.Banakar. 3. The genesis of the complaint is that the daughter (deceased) of the complainant was given in marriage to the accused about 18 years back. They have begotten a male child and he was studying in 10th standard. Sometimes the deceased and the appellant accused used to stay with the parents of the deceased. Two years prior to the death, they had shifted their house to Manoj Park, Hubballi. There the deceased and accused used to stay. The accused was working as a watchman and they used to stay in a shed. The son of the accused and the deceased had been to the house of the complainant on the previous date of the alleged incident. It is further alleged that the accused was addicted to bad vices and he used to suspect the character and fidelity of the deceased wife and used to quarrel often. The complainant and the neighbours advised him. Inspite of the said advise, everyday he used to make galata. 4. On 29.09.2011 at about 06:00 p.m., the son of the deceased called to the mobile phone of the deceased. The said phone was switched off and along with the complainant, he came to the house and pushed the door which was not latched and when they went inside the house, there they found the deceased lying in a pool of blood in a supine position and they found the bleeding injuries. Immediately they raised hue and cry. The neighbourers and other persons came there and they came to know that by suspecting the character and fidelity of the deceased, the accused had caused the murder with the knife. 5. On the basis of the complaint, a case has been registered in Crime No.154/2011. Thereafter, the Investigating Officer investigated the case and filed the charge sheet. 6. The neighbourers and other persons came there and they came to know that by suspecting the character and fidelity of the deceased, the accused had caused the murder with the knife. 5. On the basis of the complaint, a case has been registered in Crime No.154/2011. Thereafter, the Investigating Officer investigated the case and filed the charge sheet. 6. The learned Magistrate took the cognizance and after compliance of the provisions of Section 207, he committed the case to the Sessions Court. The Sessions Court took the cognizance, and secured the presence of the accused. After hearing the learned Public Prosecutor and the learned counsel for the accused, the charge was prepared, read over and explained to the accused. Accused pleaded not guilty. He claims to be tried and as such, the trial was fixed. 7. In order to prove the case of the prosecution, prosecution got examined 16 witnesses and got marked 24 documents and 9 material objects. During the course of cross-examination of P.W.13, Ex.D-1 was got marked. Accused was questioned under Section 313 of Cr.P.C. by putting incriminating material as against him. He denied the said incriminating material, but he has not led any evidence nor got marked any documents. After hearing both the sides, the learned Sessions Judge passed the impugned order of conviction. Challenging the legality and correctness of the said judgment, the appellant accused is before this Court. 8. The main grounds urged by the learned counsel for the appellant accused are that the judgment of conviction and the order of sentence passed by the learned Sessions Judge is contrary to the evidence and material placed on record. Even though, there is no corroborative evidence to show that the accused has committed the alleged offence, only on presumption and assumption, the Trial Court has wrongly convicted the accused. It is her further contention that when the case is resting only on circumstantial evidence, all the links in the chain has to be connected and so connected should only point out the guilt of the accused, accused alone. In the absence of any such material, the Trial Court could have given the benefit of doubt to the accused and accused could have been acquitted. It is her further contention that there is no motive to commit the alleged offence. In the absence of any such material, the Trial Court could have given the benefit of doubt to the accused and accused could have been acquitted. It is her further contention that there is no motive to commit the alleged offence. Even though during the course of evidence, it has been brought on record that the deceased was having illicit relationship with three persons and any one of them might have committed the murder of the deceased. The Trial Court ignoring the said fact has wrongly convicted the case. She further submitted that the prosecution has not explained properly the injuries suffered over the body of accused. When the accused was apprehended he was having multiple injuries on his hand and a duty is cast upon the prosecution to explain the injuries on the accused and in the absence of any explanation, the benefit of doubt could have been given to the accused. 9. It is her further contention that the accused was also mentally unsound and the material suggested goes to show that he was not mentally sound and the prosecution has not got examined the accused medically. The prosecution has to establish the fact that at the time of alleged incident, the accused was mentally sound and he was knowing the consequences. In the absence of any such material, the benefit of doubt should have been given to the accused. 10. She alternatively argued by contending that in the self defence, the accused has suffered with injuries and he was not having any intention to cause the death and a lenient view may be taken and lesser punishment may be given. On these grounds, she prayed to allow the appeal and to set aside the impugned order and acquit the accused. 11. Per contra, learned Additional S.P.P. vehemently argued and contended that admittedly the entire case rests on circumstantial evidence. There is strong motive in the said case to the effect that the accused used to suspect the fidelity of the deceased and the deceased was having some relation with other male members and in that context, the accused used to consume alcohol and used to quarrel with the deceased. There is strong motive in the said case to the effect that the accused used to suspect the fidelity of the deceased and the deceased was having some relation with other male members and in that context, the accused used to consume alcohol and used to quarrel with the deceased. He further submitted that P.W.1 is the mother of the deceased and mother-in-law of the accused and she had advised the accused not to quarrel and even the neighbourers P.W.8 and other have also deposed that the accused used to quarrel with the deceased by suspecting that she has some illicit relationship with other persons and in that light, P.W.6, the owner of the house of the accused has also supported the case of the prosecution and nothing has been brought on record to discard their evidence. Taking the said fact, Trial Court has convicted the accused. It is his further submission that the Manager P.W.13 clearly deposed before the Court that the accused was working under him as a Watchman and the accused and the deceased were provided with a shed and he used to look after the construction and used to stay in the same shed and that the evidence goes to show that it is the accused and the deceased who were living together in the said shed and if an unnatural death takes place, then under such circumstances, it is for the accused to explain the grounds for unnatural death of his wife. In the absence of any such explanation, the only inferences which can be drawn is that it is the accused who has committed the alleged offence. 12. It is his further submission that the incriminating material that is the knife has been recovered from the house of the shed of the accused at his instance. Though the prosecution witnesses have turned hostile, but during the course of crossexamination by the learned Public Prosecutor, they have clearly deposed that the said knife and the stained clothes of the accused have been produced by the accused and the same have been recovered at his instance. The said witnesses have not been crossexamined and the examination-in-chief and the evidence of these witnesses has remained unchallenged. The said witnesses have not been crossexamined and the examination-in-chief and the evidence of these witnesses has remained unchallenged. He further submitted that Ex.P-22 clearly goes to show that the accused has suffered with self inflicted injuries and he has been got treated immediately and the accused has not explained under what circumstances he has suffered those injuries. In the absence of any such material, the inference which may be drawn is that the accused has committed the offence. On these grounds, he prayed to dismiss the appeal. 13. We have carefully and cautiously gone through the submissions made by the learned counsel for the appellant accused and the learned Additional S.P.P. for the respondent State. Perused the records including Trial Court records. 14. On careful perusal of the records, it indicates that there are no eyewitnesses to the alleged incident and the entire case rests on circumstantial evidence. To prove the case of the prosecution, prosecution got examined 16 witnesses. P.W.1 is the mother of the deceased and mother-in-law of the accused. She has deposed with regard to the accused quarreling with the deceased by suspecting her character and fidelity and he used to ill-treat and harass her and she has further deposed that elders and herself had advised him and at that time, he had abused and had sent them back. She has further deposed that previous night before the death, the accused and the deceased were staying in the shed and she had talked over the phone to the deceased and her grandson had stayed along with her. She has further deposed that on the next day morning P.W.6 called over the phone of the deceased and the said phone was switched off. Immediately both of them came to the shed and the door was opened, when they pushed the door and when they went inside, they saw the dead body of the deceased lying in the pool of blood and they also saw that there were injuries on her neck, shoulder, arm and stomach. Immediately she went and filed the complaint. 15. During the course of cross-examination of this witness, it has been suggested that accused was not having any intention to kill and it has been also suggested during the course of cross-examination, in order to have facilitated for illicit relation, the son was kept away from the house. Immediately she went and filed the complaint. 15. During the course of cross-examination of this witness, it has been suggested that accused was not having any intention to kill and it has been also suggested during the course of cross-examination, in order to have facilitated for illicit relation, the son was kept away from the house. It has been also further suggested that when the deceased Kenchava has been murdered, at that time the accused was there in the shed and in his presence, some other persons murdered her. Vaguely it has been also suggested that out of three, i.e., Basappa Yamanur, Rangappa Sunnadabatti and Shivappa Kuri, one of them might have committed the murder. The said suggestion has been denied. 16. P.W.2 is the inquest and spot mahazar panchanama Exs.P-2 and P-3. He has also supported the case of the prosecution. 17. P.Ws.3 and 4 are the recovery mahazar panchas of the knife and the clothes M.Os.5 to 7. Though they have partly supported the case of the prosecution, but in their evidence, they consistently stated that the accused went inside the shed and produced M.Os.5 to 7. P.W.3 has not been crossexamined by the learned counsel for the accused and his evidence has been remained unchallenged. 18. P.W.5 is the seizure mahazar panchanama of the clothes of the deceased, as per Ex.P-5. P.W.6 is the son of the deceased of the accused. He has also reiterated the evidence of P.W.1 and during the course of cross-examination, nothing has been elicited so as to discard his evidence. 19. P.W.7 is the sister of the deceased and she has deposed with regard to the accused suspecting the fidelity and quarrelling with the deceased and once the accused was called to his in-laws house and he had been advised. During the course of crossexamination, nothing has been suggested so as to discard her evidence. 20. P.W.8 is the neighbour, who is residing by the side of the house of the accused. He has also deposed with regard to the fact that accused and deceased used to stay in the shed and the accused used to quarrel with the deceased by suspecting her fidelity. During the course of cross-examination, it has been suggested that the accused used to utter that he is going to kill the deceased and her son. Except that nothing has been suggested. 21. P.W.9 is also a neighbourer. During the course of cross-examination, it has been suggested that the accused used to utter that he is going to kill the deceased and her son. Except that nothing has been suggested. 21. P.W.9 is also a neighbourer. He has also reiterated the evidence of P.W.8. During the course of cross-examination, nothing has been elicited so as to discard his evidence. 22. P.W.10 is the Doctor, who has conducted autopsy over the body of the deceased and has issued the postmortem report as per Ex.P-6 and he has given his opinion that the death is due to shock and haemorrhage as a result of injuries sustained. 23. P.W.11 is the driver. He has deposed that the accused and the deceased used to stay in the shed and the accused by suspecting the character and fidelity used to quarrel with the deceased and after the quarrel, they had come along with the elders and had advised the accused. During the course of crossexamination, he has admitted that he has seen the accused quarrelling by consuming the alcohol. 24. P.W.12 is the Assistant Engineer. He has prepared the sketch of the scene of the offence as per Exs.P-9 and P-10. P.W.13 is the Manager of the Mahaveer Construction Company. He has deposed that the accused was appointed as a Watchman in their Company. At the place of construction, a shed was constructed and the accused and the deceased used to stay in the said shed. Except that nothing has been deposed by him. During the course of crossexamination, it has been suggested that the accused was not happy with the conduct of the deceased. 25. P.W.14 is the Police Constable, who carried the F.I.R. Ex.P-11 to the jurisdictional Court and submitted the same. P.W.15 is also a Police Constable who carried the sealed articles to FSL, Belagavi for the purpose of chemical examination. P.W.16 is the Police Inspector, who conducted the investigation and filed the charge sheet against the accused. 26. Admittedly, when a case is based on circumstantial evidence, motive is considered to be very important. Apart from that the prosecution has to establish all the circumstances and such circumstances proved lead to one and only conclusion towards the guilt of the accused. Evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Apart from that the prosecution has to establish all the circumstances and such circumstances proved lead to one and only conclusion towards the guilt of the accused. Evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Rukia Begum vs. State of Karnataka, (2011) AIR SC 1585 . 27. Keeping in view the ratio laid down in the decision quoted supra, let us consider whether the prosecution has proved all the circumstances beyond all reasonable doubt. 28. The first circumstance on which prosecution is intending to rely upon is that on motive. The evidence of P.W.1 the mother-in-law of the accused, P.W.6 the son of the deceased and the accused, P.Ws.8 and 9 neighbourers and P.W.13 the Manager they have consistently stated that the accused by suspecting the character of the deceased, used to consume alcohol, used to quarrel and many a times the accused was advised to lead proper life, but inspite of that the accused used to drink and was creating problem. In that light, if the evidence which has been produced, is looked into, nothing has been brought on record so as to discard the said evidence. Though during the course of cross-examination of P.W.1, it has been suggested that the deceased was having relation with one Basappa Yamanur, Rangappa Sunnadabatti and Shivappa Kuri of Yadwad, the said suggestion has been denied and the accused has not brought any material so as to come to the conclusion that it is those persons, who were having any enmity with the deceased and they might have committed the alleged offence. In that light, the motive which has been suggested has been proved by the prosecution beyond all reasonable doubt. 29. The second circumstances on which the prosecution is intending to rely upon is that of the accused and the deceased were residing together and on the alleged date of the incident the accused and the deceased alone were there in the house and when the complainant and the grandson went to the house, they saw the deceased lying in a pool of blood. It is the trite of the law that when the couple were staying together and if there is possibility of an outsider coming and there having an excess and if any unnatural death of his wife takes place in the said premise, then it is for the accused to explain the grounds for unnatural death. If he fails to explain the said fact, then under such circumstances, a presumption has to be drawn that it is the accused, who has committed the alleged offence. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Dnyaneshwar vs. State of Maharashtra, (2007) 10 SCC 445 and yet another decision in the case of Swamy Shraddananda alias Murali Manohar Mishra vs. State of Karnataka, (2007) 12 SCC 288 at para 34, it has been observed as under: "34. If it is proved that the deceased died in an unnatural circumstance in her bedroom, which was occupied only by her and her husband, law requires the husband to offer an explanation in this behalf. We, however, do not intend to lay down a general law in this behalf as much would depend upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which would lead to a circumstance against the accused." 30. Keeping in view the ratio laid down in the above decisions, on perusal of the entire evidence, which has been produced, nothing has been brought on record to show that some access was there to third person and that they might have committed the offence. During the course of cross-examination, it has been tried to bring on record that the persons who are having illicit relation with the deceased might have committed the murder. Vague suggestion has been made without there being any substantial proof of the same. Under such circumstances, the said circumstance also points out to the guilt of the accused, accused alone. 31. Coupled with this, the incriminating material i.e., stained clothes and the knife and other articles have been recovered at the instance of the accused. Vague suggestion has been made without there being any substantial proof of the same. Under such circumstances, the said circumstance also points out to the guilt of the accused, accused alone. 31. Coupled with this, the incriminating material i.e., stained clothes and the knife and other articles have been recovered at the instance of the accused. As could be seen from the evidence of the Investigating Officer, he has deposed that after the apprehension of the accused, his voluntary statement has been recorded, as per Ex.P-12 and thereafter along with P.Ws.3 and 4, the accused led to the house, from the bathroom he has produced the knife, a stained shirt, a pant and the same have been seized by drawing a mahazar, as per Ex.P-4. Unfortunately P.W.3 though he has been treated partly hostile, but he has deposed with regard to production of the said incriminating material by the accused, the said witness has not been cross-examined and his evidence has remained unchallenged. In that light also, the evidence of recovery at the instance of the accused has been proved beyond all reasonable doubt. 32. Though during the course of arguments, the learned counsel for the accused submitted that the accused has sustained injury to his hand and when the Police apprehended the accused and found injuries, a duty is cast upon the prosecution to explain the injuries on the accused. But as could seen from Ex.P-22, it clearly goes to show that immediately after the apprehension of the accused, he has been taken to the KIMS Hospital and there he has been got treated and in the hospital, it has been stated that the said injuries are self inflicted on 29.09.2011 at about 02:00 a.m. at the residence of Manoj Park, Hubballi. When the material has been produced to substantiate the fact that he has sustained injuries at about 02:00 a.m. on the date of the alleged incident and death of the deceased has also taken place on the same day night when accused and deceased were there in the shed, then under such circumstances, the accused has to explain under what circumstance and in what situation he has suffered with those injuries. In the absence of any such explanation, the said defence of the learned counsel is not acceptable. 33. In the absence of any such explanation, the said defence of the learned counsel is not acceptable. 33. We are conscious of the fact that the accused if found with the injuries and if the injuries are not explained by the prosecution, it is fatal to the case of the prosecution. But in the instant case on hand by producing Ex.P-22, the prosecution has clarified that the injuries are self inflicted injuries and the explanation has also not properly defeated by the accused. Under such circumstances, the contention taken up by the learned counsel for the accused is not acceptable. 34. Though in the synopsis it has been contended that the accused was suffering with insanity, but said suggestion is very vague. In order to take the benefit under Section 84 of the IPC, the accused has to prove the fact that at the crucial time when the offence was committed and at that time the accused was suffering with insanity as contended. In the absence of any such material, the benefit of Section 84 of IPC also cannot be extended to the accused. 35. Looking from any angle, the evidence produced and all the circumstances produced by the prosecution clearly goes to show that it is the accused who has committed the murder of the deceased. It is well established proposition of law that men may lie, circumstances will not. All the circumstances if they are linked up with one another and if the Court will be in a position to see the chain of events and if all the chain of events and important links have been established by the prosecution, then the prosecution is said to have been proved the guilt of the accused. By analyzing all the circumstance relied upon by the prosecution, they points out the guilt of the accused, accused alone and no other hypothesis or suspicion have been pointed out in this behalf. 36. Taking into consideration, the above said facts and circumstances, we are of the considered opinion that the accused appellant has not made out any good grounds so as to interfere with the judgment of the Trial Court. 37. We have carefully and cautiously gone though the judgment of the Trial Court. 36. Taking into consideration, the above said facts and circumstances, we are of the considered opinion that the accused appellant has not made out any good grounds so as to interfere with the judgment of the Trial Court. 37. We have carefully and cautiously gone though the judgment of the Trial Court. Though the judgment of the Trial Court is very cryptic, but by analyzing all the facts and circumstances, it has come to a right conclusion and there is no error or perversity in passing the impugned order. Same deserves to be confirmed. Appeal is dismissed as devoid of merits. The Trial Court is directed to secure the presence of the accused, who has been already enlarged on bail by this Court and issue the conviction warrant so as to serve the sentence as imposed by the Trial Court.