Dismissed

Chandru S/O Fakkirappa Harijan v. the State of Karnataka

Karnataka HC20 Dec 2021CRL.A/100141/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka, Dharwad Bench, dismissed the criminal appeal filed by appellants convicted of murder for killing their child. The court upheld the conviction, finding that the accused failed to explain the head injuries sustained by the victim, relying on medical evidence and the shift of burden under Section 106 of the Evidence Act.

What did the court decide?

The criminal appeal filed by the appellants fails and is dismissed, upholding the conviction and sentence of the accused.

Chandru S/O Fakkirappa Harijan Vs the State of Karnataka — Contempt of Court | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS 20^TH DAY OF DECEMBER, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ

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AND

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THE HON’BLE MS.JUSTICE J.M. KHAZI

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CRIMINAL APPEAL NO.100141/2019

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BETWEEN

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CHANDRU S/O FAKIRAPPA HARIJAN AGE: 35 YEARS, OCC: COOLIE, R/O: BADIMANAL, KUSHTAGI TALUKA, KOPPAL DISTRICT, NOW AT HARIDEVANAGAR, HABBUWADA, KARWAR 581301.

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SMT.PREMA W/O CHANDRU HARIJAN AGE: 30 YEARS, OCC: HOUSEHOLD WORK, R/O: TIRVALLI, KARAKATTANALLI, HANGAL TALUK, HAVERI DISTRICT, NOW AT HARIDEVANAGAR, HABBUWADA, KARWAR 581301.

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...APPELLANTS

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(BY SRI.K.S.KORISHETTAR, ADV.)

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AND

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THE STATE OF KARNATAKA, (KARWAR TOWN POLICE STATION), REP. BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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…RESPONDENT (BY SRI.V.M.BANAKAR, ADDL.S.P.P.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE SESSIONS JUDGE, UTTARA KANNADA, KARWAR IN S.C. NO.37/2012 DATED 28.08.2013 AND CONSEQUENTLY, ACQUIT THE ACCUSED NOS.1 & 2 BY ALLOWING THIS APPEAL.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 13.12.2021, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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Being aggrieved by their conviction and sentence for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860, (hereinafter referred to as “IPC” for short) appellants/accused Nos.1 and 2 have come up with this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.” for short).

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Vide the impugned judgment and order of conviction, the appellants/accused are sentenced to undergo imprisonment for life and pay fine of Rs.10,000/each in default to undergo rigorous imprisonment for further period of six months.

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For the sake of convenience, the parties are referred to by their rank before the Trial Court.

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The allegations against the accused are that accused Nos.1 and 2 are husband and wife. Deceased Sushant was the son of accused No.2 through her first husband. Accused Nos.1 and 2 along with deceased Sushant and CW.10/PW.6 Kamala, the mother of accused No.2 were living in Haridevnagar, Habbuwada of Karwar. Accused Nos.1 and 2 were not taking care of the deceased Sushant with love and affection and they were apprehending that if accused No.2 begets any other children through the second husband i.e., accused No.1, they will have to take care of the deceased Sushant also and with the intention of causing the death of the child i.e., deceased Sushant, on 13.12.2011 at around 02:30 a.m., they dashed the head of the child against the wall of the house and also pressed his head against the floor. Accused No.2 also bit him over his cheek and other parts of the body. As a result of the assault, the child died and thereby accused have committed the offence under Section 302 of IPC.

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Accused have pleaded not guilty to the charge framed against them.

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In support of the prosecution case, in all 14 witnesses are examined as PWs.1 to 14, Exs.P1 to 15 and MOs.1 to 6 are marked.

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During the course of the statement under Section 313 of Cr.P.C., the accused have denied the incriminating evidence arising in the prosecution case. They have not chosen to lead defence evidence.

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After hearing arguments of both sides, the learned Sessions Judge has convicted the accused and sentenced them to undergo imprisonment for life and also pay fine with default sentence. It is this judgment which is challenge in this appeal.

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During the course of his argument, the learned counsel representing the accused submitted that the impugned judgment and order of the Trial Court is erroneous, perverse and contrary to the settled principles of law and as such requires to be set aside. The Trial Court

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has overlooked the evidence, facts and circumstances of the case. The allegations made by the prosecution are baseless and unfounded. The prosecution has not proved the case beyond reasonable doubt. He would further submit that there are no eyewitnesses to the case of the prosecution. Those witnesses who have supported the prosecution case are not in good terms with the accused. The death of deceased Sushant is a natural death. The complaint is filed at a highly belated stage. No independent witnesses are examined and the conviction is based on the interested testimony of the Police witnesses. The conclusions arrived at by the Trial Court is only on assumptions, presumptions, surmises and conjectures. It is not based on sound reasoning. The Trial Court should have extended benefit of doubt to the accused and prays to allow the appeal.

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On the other hand, the learned Additional State Public Prosecutor representing the State argued that the accused persons were the only occupants of the house when the incident took place. They were the only persons who were found in the company of the deceased child

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when PW.10 Arun and PW.11 Umakant, who were working in the Traffic Police Station, left the child in the company of the accused persons and at that time the child was hale and healthy. There is also evidence of the other witnesses regarding the accused persons being the only occupants of the house when the incident took place. He would further submit that the parents of the deceased child i.e., accused persons, are not having any explanation for his unnatural death. Taking into consideration of all these aspects, the Trial Court has rightly convicted the accused persons and sentenced them accordingly and prays to dismiss the appeal.

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We have heard elaborate arguments on both sides and perused the records.

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It is the case of the prosecution that accused No.1 is the second husband of accused No.2. Through her first husband, accused No.2 was having a male child by name Sushant, who was aged four years at the time of its death. It is alleged that accused Nos.1 and 2 were not taking proper care of the deceased child and on

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13.12.2011 at around 12:30 a.m., in their house, accused No.1 assaulted the deceased child by dashing its head against the wall and pushed it to the floor and accused No.2 bit the child on its body, as a result of which, the child died and thereby the accused Nos.1 and 2 have committed the offence punishable under Section 302 read with Section 34 of IPC.

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It is not in dispute that the accused Nos.1 and 2 are husband and wife and PW.6 Kamala is the mother of accused No.2 deceased Sushant was the son of accused No.2 through her first husband. It is also not in dispute that the accused Nos.1, 2, PW. 6 Kamala and dead child were living in the same home where the incident took place. PWs.1, 2, 4 and 5 are the neighbours of accused Nos.1 and 2 and PW.6. PWs.1 to 4 and 5 are also cited as eye witnesses to the incident. However, they have not supported the prosecution case so far as the actual incident is concerned. However, their testimonies prove the fact that the deceased child was living with accused Nos.1, 2 and PW.6. On 13.12.2011, the child was found dead in the house of accused Nos.1 and 2. During the

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course of his examination-in-chief, PW.1 Chandrashekar Lamani has deposed that on 13.12.2011, the child in question was found dead in the house of the accused persons and on that day accused Nos.1 and 2 were in the house. Though PW.1 admits his signature to the complaint at Ex.P1, he has denied having given the complaint. On the other hand, he has claimed that in respect of death of the child, the Police summoned him to the Police Station and took his signature. He is also cited as witness to the spot cum seizure mahazar. With regard to the said aspect also he has not supported the prosecution case. The accused persons have taken up a defence that PW.6 Kamala, the mother of accused No.2 was a drunkard and while carrying the deceased baby in an inebriated condition, the child fell down and sustained injury. However, during his cross-examination by the defence, PW.1 has expressed ignorance to the suggestion that the child died while it fell down on being carried by PW.6 Kamala.

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PW.2 Prashant is cited as a circumstantial witness to the effect that accused Nos.1 and 2 used to

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assault the child and many times he intervened and pacified them and rescued the child. However, he has not supported the prosecution case on that aspect. He is also a witness to the spot cum seizure mahazar Ex.P2 and the sketch drawn by the Investigating Officer at Ex.P3. He has supported the prosecution case on this aspect and deposed that on the date of the incident, the Police came to the spot and drew the mahazar and seized a bed sheet and soil as per MOs.1 to 3. They have also prepared a sketch at Ex.P3. He has identified Ex.P4 as the photograph captured at the time of the spot cum seizure mahazar. During his cross-examination by the accused persons, he has expressed ignorance to the suggestion that the child died due to fall while being carried by PW.6 Kamala during inebriated condition.

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Similarly PW.5 Shivanand, who is a neighbour of the accused persons is cited as a eye witness having seen accused Nos.1 and 2 assaulting the child as a result of which it died. Though he has also not supported the prosecution case on this aspect, his evidence establish the

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fact that on the date of incident, accused Nos.1 and 2 were in the house along with the child.

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According to the prosecution, on the previous night i.e., on 12.12.2011 at around 11:00 p.m., PW.6 Kamala was found in an inebriated condition at the Subhash circle and the deceased child was roaming by the side of the road. After coming to know about it, PW.10 Arun Kamble, Head Constable and PW.11 Umakant, ASI of the Traffic Police Station enquired PW.6 Kamala and she replied that the child is her grandson and when they asked her to take the child back to the home, she replied that since she is in an inebriated condition, she is not able to take the child and asked the said Police to take the child to her house. It is further case of the prosecution that in this regard, PWs.10 and 11 enquired PW.4 Elisha about the whereabouts of the parents of the child and he took them to the house of accused Nos.1 and 2. All of them brought the accused Nos.1 and 2 to the place where PW.6 Kamala had slept and handed over the child to accused Nos.1 and 2. PWs.10 and 11 went along with accused Nos.1 and 2 to see that the child reaches the home safely.

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The evidence of PW.4 Elisha, PW.6 Kamala, PW.10 Arun and PW.11 Umakant prove this fact. During the course of her evidence, PW.6 Kamala, the mother of accused No.2 and the grandmother of the deceased child has deposed that on previous day of the death of the child, at 10:00 p.m. accused Nos.1 and 2 started quarrelling and therefore she took the child and went outside the house. She has also stated that since she was in an inebriated condition, she slept by the side of the road near Subhash circle, but the Police took the child with them to the house of the accused. She slept by the side of the road at Subhash circle and went home in the morning and when she reached home, accused Nos.1 and 2 took the child to the Hospital saying that it is not keeping well.

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During the course of his evidence, PW.4 Elisha, who is a neighbour of accused persons has deposed that on the previous day at 11:00 p.m., PWs.10 and 11 came and enquired with him about the parents of the child saying that PW.6 has slept by the side of the road at Subash circle and the child was roaming on the road. He has further deposed that he took PWs.10 and 11 to the

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house of accused persons and in turn the Police brought accused Nos.1 and 2 with them to the Subash circle and handed over the child to them. Both accused and the child were sent in the autorickshaw to the house. He has specifically stated that on the next day at 07:00 a.m. he came to know that the child has died and he found some bite marks on the cheek and the tongue appears to be beaten.

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At the relevant point of time, PW.10 Arun was working as Head Constable and PW.11 Umakant was working as ASI at the Traffic Police Station, Karwar. Their evidence establish the fact that on 12.12.2011 at 11:00 p.m., they found PW.6 Kamala sleeping by the side of the road at Subash circle and her grandson i.e., Sushant was moving on the road. When both of them enquired with PW.6 Kamala, she revealed that the child is her grandson and since its parents i.e., accused Nos.1 and 2 were quarrelling, she took the child with her and since she is drunk, she is unable to go back home. Therefore, with the help of PW.4 Elisha, they reached the house of accused Nos.1 and 2 and brought them back. At the spot, accused

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Nos.1 and 2 identified their son and took him to their house. PWs.10 and 11 made sure that accused persons reached their home along with the child safely, PW.11 Umakant has specifically deposed that he went along with accused Nos.1 and 2 to their house when they took back the child with them and came back. On the next day they came to know about the death of the child in the house of accused Nos.1 and 2.

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During his cross-examination, PW.10 has stated that he and PW.11 went to the house of accused persons on the motorbike, but they did not take the child with them. When questioned that they did not leave the child at the Police Station, PW.10 has replied that since the grandmother of the child was with him, they did not leave the child at the Police Station. PW.10 has admitted that since PW.6 Kamala was in an inebriated condition, she was not in a position to safeguard the child. On this aspect, when questioned whether there was any impediment for them to leave the child at the Police Station, PW.11 has replied that since the Police Station was very near and the Sentry was very near to the place where the child was

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playing, they did not leave the child at the Police Station. It is relevant to note that when they enquired with PW.6 about the child, she was in an inebriated condition. The Police were not sure about the accused being the parents of the child and therefore they thought it proper to bring the parents of the child to the place where PW.6 was sleeping and made sure that accused Nos.1 and 2 identify the child and take it with them safely. When suggested that while PW.6 was carrying the child, it fell down and sustained injury, PW.10 has expressed his ignorance. However, PW.11 has denied that on that night the child sustained head injury and therefore they did not take the child with them to the house of the accused persons.

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If at all the child was injured when PWs.10 and 11 saw him at Subhash circle, they would have certainly got treated him by taking him to the hospital. The very fact that they have not done so goes to show that the child was normal and he was not at all injured. Though PW.4 Elisha has not completely supported the prosecution case and to some extent he has tried to help the accused persons, no suggestion is made to him that when he,

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PWs.10 and 11 saw the child, it was already injured and it had sustained head injury. This fact indicates that a futile attempt is made by the defence to show as though the child had sustained head injury on account of PW.6 Kamala carrying the child in an inebriated condition. If that were to be the case, then the Police would have certainly filed charge sheet against PW.6.

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The testimony of PWs.4, 10 and 11 establish the fact that at the Subhash circle after finding the child roaming without the guardianship of its parents as well as PW.6 had slept by the side of the road in an inebriated condition, PWs.10 and 11 with the help of PW.4 brought accused Nos.1 and 2 to Subhash circle and handed over the child to them and they made sure that both accused reached the home safely with the child. Thus, through the evidence placed on record, the prosecution has established that at the relevant point of time, accused Nos.1 and 2 were living with the child and PW.6. Immediately prior to the incident wherein the child sustained head injury, accused Nos.1 and 2 were found in the company of the deceased child. On the next day, in the morning, the child

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was dead with the head injuries. Absolutely accused Nos.1 and 2 are not having any plausible explanation for the child sustaining the head injuries. Inspite of the neighbouring witnesses turning hostile to help the accused persons, from the material on record, the prosecution has proved that the child has sustained injuries while in the house of accused Nos.1 and 2 and at that time, they were the only occupants.

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So far as PWs. 1, 2, 3 and 5 turning hostile and not supporting the prosecution case, it is relevant to refer to the decision reported in (2017) 1 SCC 529 in the matter of Ramesh and Others. V/s. State of Hariyana , wherein the Hon’ble Apex Court observed and held that for various reasons witnesses turn hostile, may be due to threat/ intimidation or Inducement by various means or Use of muscle or money power by the accused or Use of stock witnesses or Protracted trials or hassles faced by the witnesses during investigation and trial or Non-existence of any clear-cut legislation to check hostility of the witnesses or a combination of these factors. Referring to Section 154 of Evidence Act, as held by the Hon’ble Apex Court in the

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case reported in (2015) 3 SCC 220 in the matter of Vinodkumar V/s. State of Punjab even if a witness is characterized as a hostile witness, his evidence is not completely effaced. Such evidence remains admissible in trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. As already discussed though PWs.1, 2, 3 and 5 have turned hostile with regard to the complicity of accused in the actual crime, their evidence establishes the fact that on the date of incident accused Nos.1 and 2 were the only inmates of the house along with the child and in the morning it was found that the child has died due to injuries sustained by it. Accused have no explanation for the same. They are in the exclusive knowledge of what exactly transpired in the house resulting in the child sustaining injuries resulting in his death.

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In the absence of any explanation as to how the child sustained injuries and disclosing the information which is within their exclusive knowledge, the prosecution has proved that the child sustained head injuries and

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succumbed to the same and accused Nos.1 and 2 are responsible for it.

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Now coming to the medical evidence regarding the cause of death. PW.7 Dr.Nandakumar has conducted the postmortem examination on the dead body of the deceased child. He has deposed that on 13.12.2011 he conducted the postmortem examination and Ex.P11 is the postmortem report. He has given opinion regarding the cause of death as due to bleeding in the brain on account of the second injury sustained to the head i.e., head injury and the death has occurred about 12 to 18 hours prior to the postmortem examination. At para 9 of his evidence, he has deposed that if a child is forcibly pushed against the wall, the second injury is possible. Similarly, if a child is pressed against the ground with its face, injury No.1 is possible. During his cross-examination, he has denied that if a child falls while being carried by a person in an inebriated condition, the second injury sustained by the deceased is possible. The evidence of PW.7 proves the fact that the death of the deceased was due to the injury sustained by him and such injury is possible if the head of

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the child is dashed against the wall and injury No.1 is possible if its face is pressed against the floor.

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The FSL report at Ex.P14 and serology report at Ex.P15 establish the fact that the nylon mat and bed sheet which were recovered from the house of the accused and also the blood mixed mud recovered from their house are stained with human blood and the blood stains on the mat and bed sheet are of “O” group. The accused have no explanation with regard to blood of human origin of “O” group being found on these articles. Their defence that the child has sustained injury while being carried by PW.6 Kamala and it fell down is not supported by any evidence. If at all the child has sustained any injury, then the natural course opened to them was to take the child to the hospital and get it treated. A hypothetical suggestion is made to the neighbouring witnesses that since Kamala was a drunkard and addicted to drinking, it was common for her to carry the child and during such circumstances, the child used to sustain injuries. However, the accused have failed to establish that on the previous day i.e., on 11.12.2011, the child has sustained injury while he was

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being carried by PW.6. On the other hand, through the oral and documentary evidence placed on record, the prosecution has proved that the death of the child has taken place inside the house of the accused persons and at that time accused Nos.1 and 2 were the only occupants of the said house. They have no explanation for the injury sustained by the deceased who was their child. After the prosecution has discharged its burden beyond reasonable doubt, the onus shifts on the accused persons under Section 106 of the Indian Evidence Act to explain the circumstances in which the child has sustained the injuries which resulted in its death. The accused persons have failed to discharge this onus.

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Appreciating the oral and documentary evidence placed on record and in the light of the provisions of Section 106 of Evidence Act, the Trial Court has rightly held that the charges levelled against the accused are proved beyond reasonable doubt. We find no perversity in the findings of the Trial Court and accordingly we proceed to pass the following:

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ORDER

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The appeal filed by the appellants/accused fails and accordingly it is dismissed.

Sd/-

JUDGE

Sd/JUDGE