Partly allowed

Eshwarappa v. State of Karnataka

Karnataka HC17 Jan 2022CRL.A/1682/2017

Case brief

AI extract

What is this about?

In a criminal appeal against conviction and sentencing for murder under Section 302 IPC, the High Court of Karnataka confirmed the conviction but quashed the specific direction for life imprisonment till natural death. The court held that life imprisonment does not require such a rider unless specific grounds for restricting remission rights exist, and the accused is sentenced to life imprisonment

What did the court decide?

The conviction is confirmed. The order of sentence is modified by removing the rider of imprisonment 'till his natural death', resulting in a standard sentence of life imprisonment.

Eshwarappa Vs State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF JANUARY, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE Mrs. JUSTICE M.G. UMA

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CRIMINAL APPEAL NO.1682/2017

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BETWEEN:

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ESHWARAPPA S/O MUNAKERI THIMMAPPA AGED ABOUT 58 YEARS OCC: FARMER R/O VILLAGE GOWTHAMAPURA TALUKA SAGAR DISTRICT SHIVAMOGGA - 28

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... APPELLANT

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(BY SRI: VENKATESH P. DALWAI, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY SAGAR RURAL POLICE STATION REP BY PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE - 560 001.

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... RESPONDENT

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(BY SRI: VIJAYKUMAR MAJAGE, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 17.08.2017 AND SENTENCE DATED 19.08.2017 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT SAGAR IN

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S.C.NO.10007/2017 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC; THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE I.E., HE HAS TO REMAIN IN PRISON UNTIL HIS NATURAL DEATH AND TO PAY FINE OF RS.20,000/- FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.

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THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY THROUGH VIDEO CONFERENCE M.G. UMA J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant being the accused is before this Court against the impugned judgment of conviction dated 17.08.2017 and the order of sentence dated 19.08.2017 passed in S.C.No.10007 of 2017 on the file of V Additional District and Sessions Judge, Shivamogga, sitting at Sagar (hereinafter referred to as 'the Trial Court' for brevity) convicting the accused for the offence punishable under Section 302 of Indian Penal Code (for short 'the IPC') and sentencing him to undergo imprisonment for life i.e., to remain in prison until his natural death and to pay a fine of Rs.20,000/-.

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Brief facts of the case as contended by the prosecution is that, on 27.11.2016 at 4.00 p.m., the accused being the husband of Kollamma picked up quarrel with her as

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she had not served meals to him and as he was suspecting her fidelity, with an intention to cause her death assaulted with a machete on her forehead, lifted and drowned her in the small water tank in his bathroom and caused her death by drowning. Thereby, he has committed the offence punishable under Section 302 of IPC. PW1 - Dinesh, the brother of the deceased Kollamma lodged the first information against the accused as per Ex.P1. After registering the FIR as per Ex.P13, the investigation was undertaken and the charge sheet was filed by the Investigating Officer. The committal Court secured the presence of the accused and committed the matter to the learned Principal Sessions Judge, who in turn made over the matter to the V Additional District and Sessions Judge, Shivamogga, sitting at Sagar, for disposal in accordance with law.

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The Trial Court secured the presence of the accused and framed the charge and read over to the accused in the language known to him. The accused pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 17, got marked Exs.P1 to P16 and identified MOs.1 to 9 in support of its contention. The accused has denied all

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the incriminating materials available on record in his statement recorded under Section 313 Cr.P.C. but has not chosen to lead any evidence in support of his defence. The Trial Court after taking into consideration all the material on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and therefore convicted and sentenced the accused as stated above. Being aggrieved by the impugned judgment of conviction and order of sentence passed by the Trial Court, the accused has preferred this appeal.

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We have heard the learned counsel for the

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parties.

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Sri.Venkatesh P Dalwai, learned counsel for the appellant contended that there are no eye witnesses to the incident. The prosecution has relied on the circumstantial evidence to prove the guilt of the accused. The prosecution has not even probablised its contention that the deceased was assaulted and drowned in the water tank in the house of the accused. The so-called recovery of material object at the instance of accused is also doubtful. The scene of occurrence was tampered before drawing of the spot panchanama. The

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Trial Court has not taken into consideration the defence taken by the accused that he is having gangrene in his both legs and he is incapable of lifting the deceased and drowning her in the small water tank. The version of PWs.2, 3 and 6 creates reasonable doubt regarding the manner in which the incident had occurred. PW6 - Dr.Suma categorically states that the death was due to drowning. There is absolutely no material to connect the appellant to the offence in question. It is most probable that the deceased might have accidentally fell in the small water tank in the house. She must have sustained injuries to her forehead while falling and died due to drowning. The Trial Court has not taken into consideration this probability and has proceeded to convict the accused without any basis. Therefore, he prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence, in the interest of justice.

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Alternatively, the learned counsel submitted that

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the sentence imposed by the Trial Court for the offence punishable under Section 302 of IPC to undergo imprisonment for life i.e., to remain in prison until his natural death is unknown to law. The Trial Court has also not assigned any

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reasons for imposing such harsh sentence, when Section 302 of IPC do not prescribe for the same. Therefore, even if the Court comes to the conclusion that the prosecution is successful in proving the guilt of the accused for the offence punishable under Section 302 IPC beyond reasonable doubt, he is to be sentenced with imprisonment for life simplicitor, without there being any unreasonable condition to remain in prison until his death. Accordingly, he prays for allowing the appeal.

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Per Contra, Sri.Vijaykumar Majage, learned Additional State Public Prosecutor opposing the submission made by the learned counsel for the accused contended that even though the prosecution relies on the circumstantial evidence, it is successful in proving the guilt of the accused beyond reasonable doubt. PWs.1 and 3 - the brothers of the deceased, PW2 - the sister-in-law of the deceased, PW9 - one of the villager, PW10 - son of the deceased have consistently deposed regarding the motive for the accused to cause the death of the deceased. They have also spoken about the conduct of the accused immediately after the incident in informing PW8 over phone that he had consumed poison.

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After receiving this information, PWs.1, 2, 3 and 10 have rushed to the spot. The accused was found in the house, but he had not consumed poison. When enquired about the deceased, he gave evasive answers. The deceased was found drowned in the water tank in the bathroom of the house. The reason for the unnatural death of the deceased was never explained by the accused even though he was very much present in the house in question on the date of the incident. PW6 - the doctor who conducted postmortem examination gave his opinion that the death was due to asphyxia as a result of drowning. These materials unmistakenly points accusing the finger towards the accused. The accused has not taken any defence nor probablised his contention that she fell into the small water tank accidentally or that he is not capable of taking the deceased to the water tank and drown her, since he is suffering from gangrene. Therefore, the Trial Court was right in convicting the accused for the above said offence. The impugned judgment of conviction and order of sentence do not suffer from any illegality or perversity and therefore, the appeal is liable to be dismissed Accordingly, prays for dismissal of the appeal.

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In view the rival contentions urged by the learned

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counsel for the parties, the only point that arises for our consideration is:

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"Whether the accused has made out any grounds for interference with the impugned judgment of conviction and order of sentence passed by the Trial Court in sentencing the accused to undergo imprisonment of life i.e., he has to remain in prison until his natural death and to pay a fine of Rs.20,000/-?"

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We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire records including the original records carefully.

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This Court being the appellate Court, in order to re-appreciate the entire material on record, it is relevant to re-consider the evidence of prosecution witnesses and the documents relied upon.

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(i) PW1 - Dinesh is the brother of the deceased. Witness has specifically stated that the accused had married the deceased about 30 years back and CW15 is their son. The accused used to

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suspect the fidelity of his wife and he used to treat her cruelly. The villagers had advised him several times, but still he was ill-treating her. The deceased was aged 50 years at the time of her death. Witness stated that on 27.11.2016, PW7 - Basavarajappa had informed him over phone that the accused had consumed poison and he informed this fact to PW2 - Chitra and asked her to go to the house of the accused which is about a furlong away from her house. After sometime, PW2 - Chitra informed him over phone that the accused had drowned the deceased in the water tank in the bathroom, as a result of which she died. Immediately, he along with CW16 rushed to the spot. He found grievous hurt on the forehead of the deceased. The blood was oozing from her nose and mouth. He learnt that the accused had assaulted the deceased and drowned her in the water tank. He lodged the first information with the police immediately after coming to know about the fact, as per Ex.P1. Witness also stated that the police have come to the spot and have drawn spot mahazar as per Ex.P2. Exs.P3 to 5 are the photos taken at the spot. He identified MOs.1 to 3 as the objects seized from the spot. During cross examination, nothing has been elicited from this witness to disbelieve his version.

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(ii) PW2 - Chitra is the sister-in-law of the deceased. She also spoke about the conduct of the accused in suspecting the fidelity of the deceased and assaulting her black and blue. Witness stated that at times, the deceased even used to come to her house running as the accused chased her to assault. The accused has not mend his behavior even though the villagers had advised him. Witness stated that on 27.11.2016, PW1 - Dinesh informed her that the accused has consumed poison. Immediately, she along with her brother and sister went to the house of the accused and on enquiry, she came to know that the accused had not consumed poison. When she enquired about the deceased, the accused gave evasive answers. When she went into the house, she found the deceased drowned in the water tank inside the bathroom. She raised hue and cry and villagers have gathered there. The deceased was lifted from the water tank. She had sustained injuries on the forehead and the blood was oozing from the nose and mouth. She learnt that the accused has assaulted the deceased and drowned her in the water tank. But suspecting that the accused has consumed poison, he was shifted to the hospital, but he had not consumed poison. She identified Exs.P3 to 5 as the photos taken at the spot and also MOs.4 to 6 as the clothes which

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were on the dead body. Witness identified MO7 as the shirt that was worn by the accused at the time of incident. This witness was also cross examined by the learned counsel for the accused at length. But nothing has been elicited from her to contradict her version. Even though it was suggested to the witness that the accused was not in a position to either walk or run, since he is suffering from gangrene, witness denied the suggestion. Witness also denied that the deceased had accidentally fallen in the water tank and sustained injuries to her forehead and died due to drowning.

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(iii) PW3 - Ramesh is also the brother of the deceased who corroborated the version of PWs.1 and 2. His evidence is also not shaken during the cross examination.

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(iv) PW4 - Ramesh, PW5 - Rajappa and PW9 - Rajappa are the villagers who spoke about the illtreatment meted to the deceased prior to the incident and have stated that they came to know that the accused had caused the death of the deceased. PW9 - Rajappa is also a witness for inquest mahazar - Ex.P8. Witnesses have specifically stated that there was a chopped wound over the forehead of the deceased.

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Nothing has been elicited from any of the witnesses during cross examination.

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(v) PW6 - Dr.M Suma is the doctor who conducted postmortem examination on the dead body of the deceased and issued report as per Ex.P6. Witness stated that the deceased died due to asphyxia as a result of drowning and that the injuries found on the forehead of the deceased could have been caused with MO8 - Machete. Noting has been elicited in the cross examination to contradict her version.

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(vi) PW7 - Basavarajappa and PW8 - Jayaprakash are the relatives of the accused. They have not supported the case of prosecution, except stating that they heard from the accused over phone that he had consumed poison. Immediately, they rushed to the spot and sent him to the hospital. Both the witnesses have stated that deceased Kollamma had died in the house, but pleaded ignorance about the cause of her death. Since the witnesses have not fully supported the case of prosecution, they were treated hostile. They have not supported the case even during the cross examination. PW7 has denied the suggestion that he has given his statement as per Ex.P7.

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(vii) PW10 - Kirankumar is the son of the deceased and the accused. Witness stated that he is aged

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27 years and he is a B.A. and B.Ed graduate. Witness specifically stated that his mother was not looked after by the accused properly, but he used to assault her every now and then as he was suspecting her fidelity. He used to oust her from the house and used to chase and assault her. Witness stated that when he tried to intervene in the matter, the accused had even assaulted him many a times. Witness stated that on 27.11.2016, he was informed by PW1 that accused had consumed poison. PW2 was asked to visit the house of the accused and accordingly PW2 visited the spot and informed that the accused had assaulted the deceased with a machete and had drowned her in the water tank. Immediately, they went to the spot. Inquest mahazar was drawn by the police and his statement was recorded. During cross examination, witness denied the suggestion that the deceased had accidentally fallen in the water tank and died. Witness denied the suggestion that he is deposing falsely.

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(viii) PW11 - Prashanth is the witness to the seizure mahazar - Ex.P9. Witness stated that he was called to Sagar Rural Police Station. Accused was present there and he gave his statement stating that he can show the place where he concealed the machete in his house. Accordingly, the

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accused led the police and panchas to his house and took out the machete from beneath a cot, which was wrapped with a cloth. The same was seized in his presence as per Ex.P9. Witness identified it as MOs.8 and 9. Witness also identified the accused before the court. During the cross examination, nothing has been elicited from this witness to disbelieve his version.

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(ix) PW12 - P R Rangaswami is the Panchayat Development Officer of Gowthampura Gram Panchayat who issued Ex.P10 to show that the house in question stands in the name of Chandrakala, the wife of the accused.

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(x) PW13 - Shashidhar is the Assistant Executive Engineer who drawn the spot sketch as per Ex.P11.

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(xi) PW14 - B L Janardhana is the Police Inspector who drawn mahazar as per Ex.P2 and seized MOs.1 to 3. The rough sketch is as per Ex.P12 and inquest mahazar is as per Ex.P8 and spoken to about the injuries found on the dead body. He identified photos of the deceased and stated to have recorded the statements of PWs.11 and 12. Even though, witness was subjected to cross examination, noting has been elicited to disbelieve his version.

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(xii) PW15 - Suresh is the Sub Inspector of Police who received information and registered FIR as per Ex.P13.

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(xiii) PW16 - Dr.Chayakumari is the Deputy Director of RFSL, Davangere. Witness stated that she received 9 material objects for examination and identified those objects as MOs.1 to 9. She stated that she examined all those material objects and subjected them to serological examination. She submitted the report as per Ex.P14.

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(xiv) PW17 - Madappa is the Circle Inspector of Police who conducted further investigation, apprehended the accused, recorded his voluntary statement, recovered the machete - MO8 and the towel - MO9 which was used to wrap MO.8. Witness stated that both these objects were recovered at the instance of the accused on the basis of his voluntary statement as per Ex.P15 and the recovery mahazar as per Ex.P9. Exs.P16 to 23 are the photos taken at the spot. He also spoke about the further investigation undertaken by him. Even though he was examined at length, nothing has been elicited to contradict his version.

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Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to convict and sentence the accused for the offence punishable under

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Section 302 of IPC and sentenced him to undergo imprisonment for life i.e., he has to remain in prison until his natural death.

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It is the specific contention of the prosecution that

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the accused being the husband of the deceased was suspecting her fidelity and used to assault and treat her with cruelty. On 27.11.2016, the accused assaulted the deceased with machete on her forehead and drowned her in the water tank in the bathroom and thereby caused her death. There are no eye witnesses to the incident and the prosecution is relying on the circumstantial evidence. The relationship between the accused and deceased as husband and wife is not in dispute. It is also not disputed that the death of the deceased was caused due to the injuries sustained by her on her forehead, and it was due to asphyxia as a result of drowning. It is also not disputed that the death of the deceased was occurred in the house of the accused where he was present.

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The evidence of PWs.1 and 3 being the brothers of the deceased and PW2 one of her relative have consistently supported the case of prosecution regarding the conduct of

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the accused in suspecting the fidelity of the deceased and treating her with cruelty. PW10 is the material witness to the prosecution, he being the son of the deceased and the accused. He is aged 27 years and a double graduate. This witness has specifically stated regarding the conduct of the accused. Witness states that at times, the accused used to chase the deceased and assault her. She even used to take shelter in the house of others persons in the village. Witness stated that when he tried to intervene in the matter, the accused used to assault him as well. PWs.4 and 5 being the villagers have also stated regarding the cruelty meted to the deceased by the accused and the cause for the death. PW9 another villager also spoke about the motive of the accused to cause the death of the deceased, as he was suspecting her fidelity. Even though all these witnesses were cross examined at length, nothing is elicited to disbelieve the same.

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It is not the contention of accused that he was leading a happy life with his wife. It is also not his contention that he was not present in the house when the incident had taken place. Admittedly, the accused had not taken the deceased to the hospital immediately after the incident, but

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on the other hand, as specifically stated by PWs.7 and 8 the accused had informed PW8 that he had consumed poison. As a result of which, the accused was shifted to the hospital, but it was found that he had not consumed any poison. But the dead body of the deceased was found drowned in the water tank in the house of the accused, for which, the accused has no explanation.

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PW6 - the doctor who conducted postmortem examination deposed that the death of the deceased was due to asphyxia as a result of drowning. She has noted injury on the forehead of the deceased and issued Ex.P6 postmortem report. Ex.P2 - spot mahazar and Ex.P12 - spot sketch at the scene of occurrence disclose that the water tank in question was hardly measuring 2 x 2.5 x 2.5 feet. Ex.P8 - the inquest mahazar and Ex.P6 - postmortem disclose that the deceased was well built lady with 5.7 feet height.

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When these facts and circumstances are taken

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into consideration, the contention taken by the accused that the deceased accidentally fell into the tank, sustained injuries on her forehead and died, cannot be accepted. It is not a probable cause for the death. The conduct of the accused

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immediately after the incident in calling PW8 - Jayaprakash and informing that he had consumed poison also gives rise to a serious suspicion which is one of the strongest link in the chain of circumstances.

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The prosecution is also relying on the recovery of MO8 - machete at the instance of the accused. PW11 - Prashanth the witness to the recovery mahazar - Ex.P9 has fully supported the case of prosecution. PW17 - Madappa, the Investigating Officer has also spoken to about the voluntary statement given by the accused and the recovery of machete - MO8 which was wrapped in a towel - MO9, which was produced by the accused from beneath the cot after taking the Investigating Officer and mahazar witnesses to the spot. The version of these witnesses is not shaken during the cross examination, which is another strongest link in the chain of circumstances.

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The seizure and the recovery mahazar under which MOs.1 to 9 seized were sent to the forensic lab for chemical analysis. Ex.P14 is the FSL report issued by PW16 - Dr.Chayakumari. As per her evidence, all the 9 material objects were subjected for serological analysis and found that

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the bed sheet, pillow, machhu, towel, saree, blouse, petticoat and shirt were stained with 'A' group human blood. Admittedly, the incident had taken place in the house of the accused and he was very much present at the scene of occurrence when the incident had taken place. Under such circumstances, the occurrence of incident is very much within the knowledge of the accused.

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Under the provisions of Section 106 of the Evidence Act, he should have explained as to how the death of his wife has occurred in an unnatural manner. The accused has not taken any defence, muchless, a probable defence in his statement under Section 313 of Cr.P.C. He has not stepped into the witness box to speak about the incident. Even though, a half hearted attempt is made by the accused during cross examination of the prosecution witnesses to contend that the accused was having gangrene in his legs and was not in a position to commit the offence in question, such suggestions were denied by the witnesses. The accused has not produced any material in support of the same. Therefore, adverse inference will have to be drawn against the accused.

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The discussions held above disclose that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt for the offence punishable under Section 302 of IPC. Therefore, the accused is liable for conviction for the said offence.

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we have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. It has taken into consideration all the materials on record and arrived at a right conclusion in convicting the accused. But however, while sentencing the accused for the offence punishable under Section 302 of IPC to undergo imprisonment for life, a rider is inserted that the accused shall remain in prison until his natural death, which was not called for in the present case. The Hon'ble Apex Court time and again has made the position of law very clear that the sentence of imprisonment for life means life till last breath, unless the Government exercises the right of remission. Unless a specific ground is made out to take over the right of the accused to seek remission, the same cannot be taken away without assigning any reason. Hence, we are of the opinion that even though the accused is liable to be sentenced with

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imprisonment for life, the same cannot be specified as till his natural death. Therefore, the order of sentence in that regard is to be interfered with.

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Accordingly, the point raised above is answered Partly in Affirmative holding that the accused has made out a case to interfere with the impugned order of sentence only to the extent that the Trial Court has erred in ordering that the accused shall remain in prison until his natural death.

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For the reasons stated above, we pass the

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following:

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ORDER

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(i) Criminal Appeal filed by the accused is allowed in

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part.

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(ii) The impugned judgment of conviction dated 17.08.2017 passed in S.C.No.10007 of 2017 on the file of V Additional District and Sessions Judge, Shivamogga sitting at Sagar, is hereby confirmed. The impugned order of sentence dated 19.08.2017 passed in S.C.No.10007 of 2017 on the file of V Additional District and Sessions Judge, Shivamogga,

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sitting at Sagar, sentencing the accused to undergo

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imprisonment till his death, is hereby modified.

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(iii) The accused is sentenced to undergo imprisonment for life for the offence punishable under Section 302 of IPC and to pay a fine of Rs.20,000/-.

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Registry is directed to send back the Trial Court records with a copy of this judgment.

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Sd/JUDGE

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Sd/JUDGE

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*bgn/-

Eshwarappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Eshwarappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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