Partly allowed

Sri. Chandrappa S/O Mariyappa Banakar v. the State of Karnataka

Karnataka HC12 Aug 2020CRL.A/100072/2018

Case brief

AI extract

What is this about?

An accused challenged his conviction for killing his wife with an axe. The court upheld his responsibility for the homicidal death but substituted a conviction under Section 304 Part II of IPC and imposed seven years' imprisonment, including custody already undergone. The fine and default sentence remained unchanged.

What did the court decide?

Murder conviction substituted with conviction under Section 304 Part II of IPC; imprisonment reduced to seven years, including custody already undergone.

Sri. Chandrappa S/O Mariyappa Banakar Vs the… — Murder and Culpable Homicide | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF AUGUST 2020

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PRESENT

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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AND

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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CRL.A.NO.100072 OF 2018

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BETWEEN:

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SRI. CHANDRAPPA S/O MARIYAPPA BANAKAR, AGED ABOUT 44 YEARS, R/O: KRISHNAPUR VILLAGE, RANEBENNUR TALUK, DIST: HAVERI.

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... APPELLANT

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(BY SRI. T. M. NADAF, ADV.,)

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AND

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THE STATE OF KARNATAKA BY CPI RANEBENNUR RURAL POLICE STATION, REPRESENTED BY ADDITIONAL STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

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... RESPONDENT

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(BY SRI. V. M. BANAKAR, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 10.12.2015 AND 11.12.2015,

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PASSED BY THE II ADDITIONAL DISTRICT & SESSIONS JUDGE, AT HAVERI SITTING AT RANEBENNUR, IN S.C.NO. 29/2014.

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THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, V. SRISHANANDA, J, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by accused is preferred for being aggrieved by the judgment of conviction and order of sentence dated 10.12.2015 and 11.12.2015, respectively, in S.C.29/2014 on the file of II-Additional District and Sessions Judge, Haveri, sitting at Ranebennur, (hereinafter referred to as “the Sessions Judge” for short) whereby the learned Sessions Judge has convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.5,000/- with default sentence to undergo simple imprisonment for one year.

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The germane facts which are necessary for disposal of this appeal are as under:

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A complaint came to be lodged by one Durgappa stating that he has two sons and two daughters and one among them is Guttemma (hereinafter referred to as “the deceased”). The deceased was married to Chandrappa (hereinafter referred to as “the accused”) about twenty years earlier to the date of complaint. They have two children by name Ranjita and Shivaraj. The complainant alleges that the accused was addicted to liquor and he used to nag the deceased to pay money for consuming liquor, and when refused accused used to assault and abuse the deceased. The complainant had advised the accused in this regard on many occasions but the accused did not heed to his advice; on 25.01.2014 at about 9.00 p.m. when himself and the deceased were sitting in the house, the accused came home and when deceased offered him food, he demanded money for consuming liquor and when the deceased stated that she has no money, he abused her. He further states that when he tried to advise the accused, accused told him that it is a private affair between himself and his wife and

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he should not interfere. Thereafter, he went outside the house and slept on the platform, infront of the house.

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It is his case that on 26.01.2014 at about 5.00 a.m., he got up and found that the door of the house was closed and he had proceeded to Ranebennur market with a buffalo and sold the same in Ranebennur market and returned to his house at 9.00 a.m. and found the door of the house was still closed. He was surprised and pushed the door of the house and found bloodstains and raised a hue and cry. The neighbours gathered there and when all of them went inside, they found his daughter in sleeping position and there was blood injury on her head near her left ear and there was pool of blood under the mat. They also noticed an axe on the dead body. He has specifically contended in the complaint that the incident has occurred between 9.00 p.m. of 25.01.2014 and 9.00 a.m. of 26.01.2014, and has specifically contended that since his daughter refused to pay money to the accused for consuming liquor, the accused assaulted her and killed her.

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On receipt of the complaint, the PSI of Halageri police station registered a case in Crime No.13/2014 and thereafter he has handed over the investigation to the Circle Inspector of Police. The Circle Inspector of Police visited the place of incident at about 11.00 a.m. and conducted inquest mahazar, spot mahazar, took photographs, sent the dead body for postmortem examination, seized the axe, mat, sample mud and bloodstained mud, prepared sketch and recorded the statements of the witnesses who were present at the spot of incident and arrested the accused on 31.01.2014 at about 4.30 p.m. He also recorded the voluntary statement of the accused and sent him to Magistrate with remand application for judicial custody, collected the documents and recorded the statements of other charge-sheet witnesses and filed the charge sheet against the accused.

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On receipt of the charge-sheet, the learned Magistrate took cognizance of the offence alleged against the accused and committed the case to Sessions Court for trial.

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The Sessions court after securing the presence of the accused, heard parties and framed the charge. The accused did not plead guilty and claimed trial. As such, the trial was held.

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In order to establish the case of the prosecution, the prosecution examined as many as 16 witnesses as P.W.1 to 16 and relied on the documentary evidence marked at Ex.P.1 to 21. The prosecution got marked seven material objects vide M.O.1 to 7. Among the prosecution witnesses, P.W.1 to 4 are the mahazar witnesses to Ex.P.1, Ex.P.4 and Ex.P.7. P.W.5, 6 and 8 are the independent witnesses who have deposed that the accused was addicted to liquor and used to quarrel with his wife (deceased) and they pacified their quarrel on earlier occasions. P.W.7, P.W.10 and P.W.11 are also independent witnesses, who have turned hostile to the prosecution. P.W.9 is the doctor who treated the accused soon after the incident. P.W.12 is another doctor who treated the accused in Chigateri Hospital, Davanagere. P.W.13 is the doctor who conducted the postmortem examination on the dead body of the deceased. P.W.14 is

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the Panchayath Officer, who gave the revenue documents in respect of the place of incident to the investigation officer. P.W.15 is the PSI, who received the complaint and registered the case and P.W.16 is the investigation officer, who conducted the entire investigation in the matter.

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P.W.1 to 4 are the mahazar witnesses who have supported the case of the prosecution. In their cross-examination, except suggesting that they have not participated in preparation of mahazars, which has been denied by the witnesses, no other useful materials are elicited by the defence so as to disbelieve the prosecution’s version.

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Among the prosecution witnesses, oral testimony of independent witnesses viz., P.W.5, P.W.6 and P.W.8 assumes importance. They have deposed about the relationship between accused and deceased; accused being addicted to liquor and nagging deceased and quarrelling with her when she refused to pay money to the accused for consuming liquor. P.W.5 also deposed

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that on earlier occasions he had pacified the quarrel and advised the accused. He further deposed that on 25.01.2014 between 8.30 p.m. to 9.00 p.m. there was a quarrel between the accused and the deceased and at that juncture, himself and 7-8 others went to the house of accused and pacified the quarrel in the presence of complainant and after the quarrel was pacified, the complainant came out of the house and slept on the platform, and accused and deceased slept inside the house; next morning when he visited the house of the accused, he came to know that accused had murdered his wife and police visited there and the dead body was in the hall of the house and the accused was also found lying by the side of the dead body.

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In his cross-examination, he answered that after finishing his agricultural operations, he had returned home around 7.30 p.m. and at around 8.45 p.m., he had visited the house of the accused. He admits that number of people had assembled there; he has not personally seen the accused consuming liquor; the deceased was related to the accused earlier to their

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marriage; complainant used to visit the house of the accused often. He denied the suggestion that the accused had informed him that his wife (deceased) was suffering from mental illness; so also, he denies that the accused was suffering from mental illness and he had taken medicines. However, he admits that the deceased used to accompany the accused for getting treatment to him for mental illness and this was known to all the villagers and so also to him; earlier to mental illness, accused used to earn money by attending coolie work.

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P.W.6, P.W.8 and P.W.10, who are the independent witnesses, have supported the case of the prosecution to the extent that the accused was addicted to liquor and he used to quarrel with deceased and he did not heed to the advice of elders to mend his behavior. The defence did not cross-examine these witnesses.

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P.W.7 and P.W.11 are also independent witnesses but they completely turned hostile to the case of the prosecution.

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P.W.9 is the doctor, who initially treated the accused at Ranebennur, deposed that on 26.01.2014 the police constable No.1101 brought the accused to him with a history that the accused has consumed poison. When he examined him, he was partly unconscious; he gave first aid; conducted stomach wash and referred him for higher medical care to Chigateri hospital, Davanagere and gave a report as per Ex.P.11. This witness is not cross-examined by the defence.

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The doctor, who gave further treatment to the accused, is examined as P.W.12. He deposed that by the time he examined the accused, the accused was totally unconscious; after treatment, the health of the accused got improved and he became normal. On 31.01.2014 he was discharged from the hospital. He was also not crossexamined by the defence.

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The autopsy surgeon is P.W.13. He deposed about conducting postmortem examination and furnishing his report (Ex.P14). He has opined that the death has occurred on account of hemorrhage and

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shock. He also stated that injury noted by him in Ex.P.14 could be caused if somebody is assaulted with M.O.1/axe. In his cross-examination, no useful material is elicited by the defence.

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P.W.14 is a formal witness, who gave revenue records to the investigation officer.

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P.W.15 is PSI, who received complaintEx.P.16 and registered FIR- Ex.P.17 and handed over the further investigation to P.W.16. In his cross examination he denies that the averments made in Ex.P.16 is dictated by the police.

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P.W.16 is the further investigation officer. He deposed about his visit to place of incident on 26.01.2014, conducting inquest mahazar, spot mahazar; seizure of M.O.1-axe, M.O.2-mat, M.O.3-sample mud and M.O.4-bloodstained mud; preparing rough sketchEx.P.18 and recording the statements of C.W.7 to C.W.12. He specifically deposed that the accused was also lying by the side of the dead body and he was unconscious and accordingly, he sent the accused for

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treatment along with police constable No.1120 and 979 under the escort and also recorded the further statement of the complainant, who was present at the spot. Later seizing the clothes found on the dead body Ex.P.7; arresting accused on 31.01.2014 and recording voluntary statement of the accused; collection of postmortem report- Ex.P.14, revenue document in respect of the spot of the incident-Ex.P.15. He further deposed about sending seized articles to for FSL examination and filing charge sheet on 15.02.2014.

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In his cross-examination, he denies the suggestion that P.W.5 to P.W.8, P.W10 and P.W.11 were not in the town; M.O.1 to 4 were not seized from the place of incident; M.O.5 to 7 are not the clothes worn by the deceased; creation of inquest mahazar and spot mahazar and filing of false charge-sheet against the accused.

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The complainant has not been examined in the present case as he was dead at the time of commencement of trial.

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On conclusion of the trial, the Sessions Court heard the parties and found that the deceased died a homicidal death and the accused is responsible for the homicidal death of the deceased by use of M.O.1/axe and as such, the accused was convicted for the offence under Section 302 of IPC. It is that judgment, which is under challenge.

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The learned counsel for the appellant submits that the trial Court has grossly erred in convicting the accused for the offence under Section 302 of IPC and has erred in sentencing the accused to life imprisonment. It is his case that in the complaint there is no mention that the accused was also lying by the side of the dead body, which exposes the hollowness in the case of the prosecution and the said fact has been totally ignored by the Trial Court. He further argues that the accused was innocent and is suffering from mental illness as admitted by P.W.5 and the entire villagers knew that the accused was suffering from mental illness and as such, the Trial Court recording the order of conviction against the

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accused is erroneous and prayed for acquitting the accused.

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He further argued even if the case of the prosecution stands proved, the fact that the accused has consumed poison and was lying by the side of the dead body, clearly indicates that the accused did not possess any intention to kill his wife and as such the trial court erred in convicting the accused for murder which is erroneous and therefore, sought for allowing the appeal.

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He further argues that there is no evidence on record to prove the complaint averments and as such, recording the order of conviction by the Trial Court cannot be sustained in the eye of law. P.W.6 to 8 and 10 are the persons whose presence at the time of alleged quarrel on 24.01.2014 is doubtful and the Trial Court placing its reliance on the oral testimony of these witnesses in convicting the accused cannot be sustained in the eye of law and prayed for acquittal.

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Per contra, the learned Additional State Public Prosecutor argued that the complainant could not

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be examined as he was no more at the time of trial. As such, the complaint averments are to be treated as dying declaration and the averments can be relied on by the Court of course, with corroboration. He further submitted that the complaint averments stood corroborated by the oral testimony of P.W.5, P.W.6, P.W.8 and P.W.10. He further contended that the accused on returning to normalcy in health was bound to explain as to how the incident has happened as admittedly it is the accused and the deceased, who were there in the house and none else. He further contended that P.W.5 has unequivocally deposed that he was present on 24.01.2014 at the time of quarrel between the accused and the deceased and after the quarrel was pacified by him. The complainant, the father of the deceased, came out and slept on the platform in front of the house and it was the accused and the deceased who were alone inside the house. He pointed out that in the absence of any such explanation offered by the accused either in accused statement or by way of defence, the trial Court was justified in holding him culpable for the homicidal

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death of the deceased and convicting him and hence, he prayed for dismissal of the appeal.

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We have perused the records meticulously. On consideration of the entire material on record and in the light of the rival contentions urged by the parties, the following points would arise for our consideration:

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i) Whether the prosecution has established that the accused is responsible for the homicidal death of deceased/Guttemma?

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ii) If so, whether the act of the accused would amount to murder and thus punishable under Section 302 of Cr.P.C.?

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We answer the above point No.(i) in the affirmative and Point No.(ii) partly in affirmative for the following:

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REASONS

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In this case on hand, there is no serious doubt as to the homicidal death of the deceased. The postmortem report marked at Ex.P.14 clearly shows that the cause of death is on account of hemorrhage and

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shock. In fact, the injury found on the dead body of the deceased is established not only by the postmortem report/Ex.P.14 but also by the photographs marked at Ex.P.5 and 6 and such a injury can be caused by the use of a sharp edged object and in the present case, according to the prosecution, M.O.1/axe has been used for the purpose of assaulting the deceased by the accused. The bloodstain found on M.O.1/axe is that of the blood group of the deceased as could be seen from the FSL report marked at Ex.P.20.

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It is the case of the prosecution that especially the oral testimony of P.W.5 as well as the investigating officer, P.W.16, that when they visited the place of incident, they not only found the dead body of the deceased but also they found the accused laying by the side of the dead body of the deceased in a semiconscious stage.

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P.W.16, thereafter took the steps to send the accused for the medical aid and when the accused was first taken to Ranebennur hospital, wherein P.W.9 gave

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him first aid and stomach wash and thereafter he was referred for higher treatment to Chigateri hospital, Davanagere. In Davanagere, he was inpatient for few days and thereafter he responded to the treatment and came back to normalcy on 31.01.2014 and P.W.16 also stated that on the same day he arrested the accused at 4.30 p.m. and recorded his voluntary statement.

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On perusal of the voluntary statement, it is seen that it is in the form of a confession and as such it cannot be relied. P.W.6, P.W.8 and P.W.10 have stated before the court that the accused was addicted to liquor and in this regard he used to pick up quarrel with the deceased often. These witnesses have pacified the quarrel on earlier occasions and advised the accused to mend his behavior. It is also found in their testimony that despite such advice, the accused did not mend his behavior and he used to pick up quarrel with the deceased frequently. P.W.5 specifically deposed before the Court that on 24.01.2014 when he visited the house of the accused on hearing hue and cry, he found that the accused had picked up quarrel with deceased as the deceased had

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refused to pay him money for consuming liquor. He and the others left the place after they pacified the quarrel. He also deposed that at that juncture, the father of the deceased, complainant, was also present and all of them came out of the house and complainant slept on the platform in front of the house and accused and the deceased were alone in the house. It is his case that on the next day morning, he came to know that the accused had murdered the deceased and as such he visited the house of the accused and found the deceased in pool of blood laying on mat covered with a bed-sheet and accused was also found in semiconscious state by the side of the dead body. He also deposed before the Court that P.W.16 and other police personnel came there and they shifted the dead body for postmortem. In his crossexamination, he admits a suggestion made to him that the accused was suffering from mental illness and deceased used to accompany him for treatment and this fact was known not only to him but also to other villagers, but taking advantage of the said admission, the

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learned counsel for the appellant argued that the accused was mentally ill and therefore, the trial vitiates.

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It is pertinent to note that such a stand was not taken in the Court below throughout the trial. If at all if the accused was suffering from unsoundness of mind, the same should have been noted by the doctor/P.W.12, who examined the accused soon after the incident and discharged him from Davanagere hospital and issued certificate marked at Ex.P.12. On perusal of Ex.P.12, it is clear that the doctor has not noted any unsoundness of the mind. If at all his behavior before the Court were to be unnatural, either the Magistrate or the Sessions Judge would have definitely noted the same in the order sheet. The accused was represented by a counsel by name Sri. S. B. Patil. It is found from para 6 of the judgment that the charge leveled against the accused was explained to the accused and he pleaded not guilty. The said recording made by the learned Sessions Judge in para No.6 of the impugned judgment would negate the theory that is put forward by the learned counsel for the appellant that the accused was suffering from mental

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illness. Further, since the incident has occurred in the house of the accused, when the accused and deceased were alone in the house, it is for the accused to explain as to how the deceased sustained injury on her neck ultimately resulting into death and that has to be explained by him. The right of silence of the accused as is enshrined in Article 22 of the Constitution is not absolute silence and is subject to few reasonable exceptions in a given case. In this regard, it is necessary to quote section 106 of the Indian Evidence Act, which reads as under:

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“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.

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Illustrations:

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(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

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(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him.”

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On bare perusal of Section 106 of the Indian Evidence Act, it is crystal clear that it is for that person who revealed that the said fact to the Court in a trial and if not revealed, the consequences under law would follow. In this regard, this Court places its reliance on the following judgment of the Hon’ble Apex Court

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Gainfully, few decisions of the Hon'ble Apex Court on Section 106 of the Indian Evidence Act are also extracted at this stage.

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In the decision of Hon’ble Supreme Court in Jamnadas v. State of M.P. , (2016) 13 SCC 12 it is held as under:

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19. We have considered the above submissions in the light of evidence on the record, and the law laid down by this Court applicable to such cases. Undoubtedly, it is a case of circumstantial evidence. In Sharad BirdhichandSarda v. State of Maharashtra [Sharad BirdhichandSarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , a three-Judge Bench

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of this Court has laid down the law as to when in a case of circumstantial evidence charge can be said to have been established. Five points enumerated in said case are summarised as under: (SCC p. 185, para 153)

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(i) The circumstances from which the conclusion of guilt is drawn should be fully established. The accused must be, and not merely may be guilty, before a court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions;

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(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

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(iii) The circumstances should be of a conclusive nature and tendency;

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(iv) They should exclude every possible hypothesis except the one to be proved; and

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(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

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20. On behalf of the appellants, it is submitted that the accused has a right to silence and no adverse

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inference can be drawn from his silence as to the cause of death of the deceased. In this connection, reliance is placed on para 141 of Selvi v. State of Karnataka [Selvi v. State of Karnataka, (2010) 7 SCC 263 : (2010) 3 SCC (Cri) 1] , which reads as under: (SCC p. 337, para 141)

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“141. At this juncture, it must be reiterated that Indian law incorporates the “rule against adverse inferences from silence” which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and proviso (b) of Section 315(1) CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial Judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence. This rule was lucidly explained in the English case of Woolmington v. Director of Public Prosecutions [Woolmington v. Director of Public Prosecutions, 1935 AC 462 : 1935 All ER Rep 1 (HL)] , AC at p. 481:

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‘The “right to silence” is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused

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is guilty merely because he has refused to respond to questions put to him by the police or by the Court.’”

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Above observations are made by this Court in an answer to the legal question raised in the batch of criminal appeals relating to the involuntary administration of certain scientific techniques, namely, narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. In the present case facts and circumstances are different. The abovereferred case, in our opinion, is of little help to the appellants in the present case.

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21. In State of W.B. v. Mir Mohammad Omar [State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC (Cri) 1516] , this Court, while interpreting the burden of extent of proof on prosecution, observed as under: (SCC pp. 392 & 393, paras 31 & 36-37)

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“31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences

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would be the major beneficiaries and the society would be the casualty.

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***

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36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows:

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‘ 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.’

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37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.”

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22. Shri S.K. Jain, learned Senior Counsel, on behalf of the appellants drew our attention to Tomaso Bruno v. State of U.P. [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] , and argued that to invoke Section 106 of the Evidence Act the prosecution must have proved presence of the appellants in their house at the time of the incident.

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We have carefully gone through the case cited before us. It was a case where CCTV footage of the hotel was available but not produced to show the presence of the accused in the hotel and, as such, the plea of alibi that the accused had gone to witness “Subah-eBanaras” from the hotel was accepted. The present case relates to a different kind of incident where a bride has been brutally murdered inside the house and her body, after cutting into pieces, was thrown in the park.

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23. In TrimukhMarotiKirkan v. State of Maharashtra [TrimukhMarotiKirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] , which is a case similar in nature to the present one, this Court has held as under: (SCC pp. 690-91, para 15)

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“15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon

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the prosecution and there is no duty at all on an accused to offer any explanation.”

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35. In Tulshiram SahaduSuryawanshi and Ors.

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vs. State of Maharashtra, (2012) 10 SCC 373 , Hon’ble Apex Court observed

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“23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position.

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The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a

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reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar

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“38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.

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In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus:

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‘11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. Onthe contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts

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that are preeminently or exceptionally within his knowledge.”

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Applying the legal principles enunciated in the above decisions to the case on hand, when once prosecution has established that deceased died a homicidal death in her living house and accused is responsible for such homicidal death, the onus clearly shifted on the appellant to explain the circumstances and the manner in which the deceased met a homicidal death in the incident-house as it was a fact exclusive to his knowledge.

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It is pertinent note that on the intervening night of 25.01.2014 and 26.01.2014, the accused and deceased were alone in the house as is found in the complaint averments coupled with oral testimony of P.W.5. Therefore, it is for the accused to explain how the deceased sustained injury on her neck. It is also for the accused to explain the bloodstains found on the axe, which was seized from the spot of incident. Further it is for the accused to explain as to what made him to consume poison. But he did not offer any explanation

¶143

¶144

while recording the accused statement. Per contra, he has not offered any explanation. Further to question No.31 of the accused statement he has answered hereunder.

¶145

¶146

The answer in vernacular means that “I was not well and can’t say where I had fallen and where I got up”. Thus, in the absence of any explanation offered by the accused as to the dead body of the deceased found in his house and the injury sustained by the deceased, the Court can draw adverse inference against the accused.

¶147

From the above discussion based on the complaint averments and the oral testimony of P.W.5, P.W.6, P.W.8 and P.W.10 to the extent that they have supported the case of the prosecution, the postmortem report/Ex.P.14, FSL report/Ex.P.20 coupled with nonexplanation of the accused as to the death of his wife Guttemma and the injury found on the dead body of the deceased resulting in her death and the reason for

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¶149

accused consuming poison, this Court can safely conclude that finding recorded by sessions court that accused is responsible for homicidal death of deceased is not suffering from any legal infirmity whatsoever and thus point No.(i) is answered in the affirmative.

¶150

This takes us to the next question that whether material on record is sufficient to hold that homicidal death of the deceased would amount to murder.

¶151

Oral testimony of P.W.5, P.W.6, P.W.8 and P.W.10 and the complaint averments would reveal that accused was addicted to liquor for considerable period of time. P.W.5 in his cross-examination admits that the accused was suffering from mental illness and deceased had taken him to hospital. From the complaint averments, it is seen that even on 24.01.2014 he had picked up quarrel with the deceased demanding money for consumption of liquor. P.W.5 and others had pacified the quarrel and thereafter the accused and the deceased slept inside the house and the complainant slept outside

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¶153

the house. What transpired in between the accused and the deceased is not known to anybody other than the deceased and the accused. Accused did not spell out anything either in the accused statement or by way of defence evidence. The fact that accused consumed poison and was shifted to the hospital by P.W.16 and he was an inpatient for about two days would indicate that the accused did not possess animus to such an extent so as to take away the life of his wife.

¶154

It is common that M.O.1 type axe would be available in any house, who are indulged in agriculture or coolie work. Had the accused possessed the motive to take away the life of his wife, he would have done it earlier also when the quarrels had taken place. There is no evidence on record wherein the accused had caused serious injuries to the deceased on earlier occasions.

¶155

It is well established that every homicidal death need not be a murder. In order to conclude that a homicidal death is murder, the prosecution has to

¶156

¶157

necessarily establish that the accused persons possessed intention of causing death.

¶158

Culpable homicide is murder if the act by which the death caused is done;

¶159

a. with the intention of causing death; or

¶160

b. with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or

¶161

c. with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

¶162

d. with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

¶163

In order to establish the charge under Section 302 of IPC, the prosecution has to necessarily establish beyond all reasonable doubt such ingredients so as to term the homicidal death into a murder. In this regard, it

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¶165

is worth to quote the relevant portion of judgment of the Hon’ble Apex Court in the case of Rawalpenta Venkalu

¶166

v. State of Hyderabad , reported in AIR 1956 SC 17, which reads as under:

¶167

“Merely causing death, by doing an act with the knowledge that is so imminently dangerous that it must, in all probability cause death, is not murder. In order that an act, done with such knowledge, should constitute murder, it is necessary that it should be committed without any excuse for incurring the risk of causing the death or bodily injury. An act, done with the knowledge of its consequences, is not prima facie murder, it becomes murder only if it can be positively affirmed that there was no excuse. The requirements of the section are not satisfied by the act of homicide being one of extreme recklessness. It must, in addition, be wholly in inexcusable. When a risk in incurred even a risk of the gravest possible character which must normally result in death, the taking of that risk is not murder unless it was inexcuatble to take it; Emperor v. Dhirajia, AIR 1940 All 486; Gyarsibai w/o Jagannath v. State, AIR 1953 MB 61.”

¶168

As regards operation of first part or second part of section 304 of IPC, it is worthy to quote the relevant portion of judgment of the Hon’ble Apex court in

¶169

¶170

the case of Jai Prakash v. State (Delhi

¶171

Administration) reported in (1991) 1 Crimes 474 (SC),

¶172

which reads as under:

¶173

“Intention and knowledge

¶174

It is fallacious to contend that when death is caused by a single blow, clause thirdly is not attracted and, therefore, it would not amount to murder. The ingredient intention in that clause gives clue in a given case whether offence involved is murder or not. ”

¶175

47. Again, in State of Rajashtan v. Dhool Singh

¶176

reported in AIR 2004 SC 1264, Hon’ble Apex court has held as under:

¶177

“(ii) Legislature had advisedly used the words: "bodily injury as the offender knows to be likely to cause death". Therefore, from an understanding of the legislative intent of section 300, I.P.C., a culpable homicide becomes murder if the attacker causes an injury which he knows is likely to cause death and, of course, consequent to such injury, the victim should die.”

¶178

With the touchstone of the legal principles

¶179

enunciated in the aforesaid decisions when the facts of

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¶181

this case is analysed, we are of the considered opinion that the prosecution is unable to establish the motive and preparation on the part of the accused to take away the life of his wife in view of discussion supra.

¶182

Thus, from the above discussion, we are of the considered opinion that even though the accused is responsible for the homicidal death of the deceased, the same cannot be treated as a murder. This act of the accused could be traced to an offence which is punishable under Section 304 Part II of IPC as the accused had the knowledge of causing injury on the neck with a sharp edged object would in the ordinary course of nature result in death of a person.

¶183

This takes us to the next question as to what should be the sentence that would be awarded to the accused. In this regard, the learned counsel for the appellant submits that the accused is in custody from 31.01.2014 and the said period of custody already undergone by the accused may be treated as imprisonment. However, the Additional State Public

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¶185

Prosecutor argued that even though this Court has scaled down the offence from section 302 to section 304 part II of IPC, the Court cannot show misplaced sympathy to accused and prayed for ordering a proportionate sentence, which according to him is not less than ten years.

¶186

On cumulative consideration of the material on record, we cannot lose sight of the fact that the accused consumed poison and was lying by the side of the dead body and was shifted to the hospital by the investigation officer, while passing the appropriate sentence. Having regard to the age of the accused and the period of imprisonment spent by him in custody, we are of the considered opinion that awarding sentence of seven years imprisonment including the period of custody undergone would meet the ends of justice. The fine of Rs.5000/- imposed by the Trial Court with default sentence needs no interference.

¶187

¶188

In view of the foregoing discussions, point No.(ii) is answered partly in the affirmative and the following order is passed.

¶189

ORDER

¶190

The accused is convicted for the offence under Section 304 Part II of IPC and sentenced to undergo imprisonment for a period of seven years and pay a fine amount of Rs.5,000/- with default sentence as ordered by the Sessions Court.

¶191

The accused is directed to serve the remaining period of sentence.

Ordered accordingly.

Sd/JUDGE

Sd/JUDGE

yan

Sri. Chandrappa S/O Mariyappa Banakar v. the State of Karnataka

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Sri. Chandrappa S/O Mariyappa Banakar v. the State of Karnataka

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