Partly allowed

Udayakumar K v. the State of Karnataka

Karnataka HC30 May 2023CRL.A/575/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka partly allowed the criminal appeal against conviction for murder. The court upheld the conviction for murder based on eyewitness and medical evidence but reduced the default sentence for fine on fine from three years to one year.

What did the court decide?

Conviction confirmed and sentence of life imprisonment and fine affirmed; default sentence for fine reduced from three years to one year.

Udayakumar K Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2023)

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CRL.A No. 575/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF MAY, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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CRIMINAL APPEAL NO. 575 OF 2017 (C)

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BETWEEN:

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UDAYAKUMAR K S/O T.P.KRISHNAPPA, AGED ABOUT 48 YEARS R/O CHAKKELAVANGGAKERI VINAYAKA NAGARA SHIKARIPURA - 577 427 …APPELLANT

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(BY SRI.I.S.PRAMOD CHANDRA, ADVOCATE AS AMICUS CURIAE)

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AND:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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THE STATE OF KARNATAKA BY SHIKARIPURA POLICE REP BY S.P.P. HIGH COURT OF KARNATAKA BENGALURU - 560 001 …RESPONDENT

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(BY SRI.SHANKAR H S, HCGP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE DATED 31.01.2017 PASSED BY THE II ADDL. DIST. AND S.J., SHIVAMOGGA IN S.C.NO.17/2015 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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CRL.A No. 575/2017

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, K S MUDAGAL J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard.

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Challenging the order of conviction and sentence

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passed against him, the accused in SC No.17/2015 on the file of the II Addl.. District and Sessions Judge, Shivamogga has preferred this appeal.

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The appellant was the sole accused before the trial Court. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.

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The case of the prosecution is as follows:

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That the accused was married to victim Shantha about 24

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years prior to 10.10.2014. That was inter-caste and love marriage. PWs.1 and 3 are the children of the said couple aged 21 years and 23 years respectively. The accused was working as a driver. They were living in Shikaripura Town. Since 2 to 3

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years prior to the incident, the accused started harassing the victim suspecting her fidelity. The advice of PWs.1 and 3 to him did not yield any result. Due to such differences the

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accused left the house and started residing with his mother in Bengaluru. PW.3 was also residing in Bengaluru. About one month prior to 10.10.2014 the accused returned home saying that he will not quarrel any more and live with them. Two days thereafter again he repeated the same conduct. On 10.10.2014 at 10.30 a.m., he assaulted the victim abusing her that she has illicit relationship with PW.2. PW.1 pacified the quarrel and left for the work. Having regard to the conduct of the accused, PW.1 was apprehensive, so he returned at 11.30 a.m. When he entered the house, he found the accused strangulating the deceased with towel M.O.1 suspecting her fidelity. By the time PW.1 rushed to her rescue, the accused had tightened the noose and the victim breathed her last. Thereafter accused left the home. PW.1 informed PW.2 and CW.5 about the incident. Then he filed complaint as per Ex.P1 before PW.8 PSI Shikaripura town police station. On the basis of the said complaint PW.8 registered FIR as per Ex.P15 against the accused and handed over further investigation to PW.11. PW.11 conducted the investigation and filed charge sheet.

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The trial Court on hearing the parties framed the charge against the accused for the offence punishable under

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Section 302 of IPC. The accused denied the charge and claimed trial. Therefore trial was conducted. In support of the case of the prosecution PWs.1 to 11 were examined and Ex.P1 to P20 and MO.1 were marked. After the examination of the accused under Section 313 Cr.P.C. with reference to the incriminating evidence neither he filed any defence statement nor adduced defence evidence.

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The trial Court on hearing the parties by the impugned judgment and order convicted the accused for the offence punishable under Section 302 IPC. Further the trial Court sentenced him to imprisonment for life and fine of Rs.30,000/- in default to pay the fine amount to undergo SI for three years. The trial Court held that the charge against the accused is proved by the evidence of PW.1 the eyewitness, the medical evidence and the evidence of other witnesses to the motive circumstance.

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Heard both side.

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Submissions of Sri Pramod Chandra, learned Amicus Curiae:

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That PW.1 being the eyewitness is doubtful. According to the prosecution itself the accused returned to the

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house of the victim at Shikaripura on medical grounds. PW.1 was young and able bodied boy. If really the assault took place in his presence, certainly he could have intervened and rescued her. That itself creates doubt about PW.1 being the eyewitness. There was unexplained delay in filing the complaint Ex.P1. Since PWs.1, 3 and the victim found the accused to be unacceptable, they have falsely implicated him in the case. The alleged circumstance of recovery of MO.1 is highly doubtful. Therefore it has to be considered that the case is one based on circumstantial evidence. Since the chain of circumstance was not completed to point out only to the guilt of the accused, the impugned judgment and order of conviction and sentence is unsustainable.

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Submissions of Sri H.S.Shankar, learned HCGP:

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PW.1 in his deposition stated that due to shock he could not comprehend what to do. Having regard to the fact of his father himself committing the murder of his mother, such explanation of PW.1 is natural. The accused himself did not dispute the presence of himself and the victim alone in the house. In the evidence of PW.7 the doctor who conducted the postmortem examination that the death was due to strangulation was not denied in the cross examination. Under

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such circumstances, it was for the accused to explain how such

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death took place in the said house and why he was not found in the house soon after the incident. His defence with regard to the cause of death was not consistent, Once he claimed that death was suicidal and at another breath he says that the deceased was indulging in money lending business and some miscreants have committed her murder. If that was the case he should have informed the police first. No motive was attributed to PWs.1 and 3 to falsely implicate him. There was sufficient evidence regarding the motive. The trial Court on sound appreciation of the evidence has convicted and sentenced the accused. Therefore the impugned judgment does not warrant interference of this Court.

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On thorough consideration of the submissions of both side and material on record, the point that arises for consideration is ‘‘ whether the impugned judgment and order of conviction and sentence suffers any illegality or perversity ’’?.

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Analysis

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There is no dispute that the accused was married to the victim about 24 years prior to the incident and that was

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love and inter-caste marriage. It is also not disputed that PWs.1 and 3 are the sons of the victim and the accused. PW.9 is the elder sister of the deceased. The prosecution case is that the accused suspecting the fidelity of the deceased was tormenting and assaulting her. On the ill-fated day ie., on 10.10.2014 at 10.am again he picked up quarrel with the victim and started assaulting her. It is further case of the prosecution that PW.1 on pacifying the couple left the house. At 11.30 a.m. he returned home as he could not continue the work as he developed anxiety due to the quarrel of his parents and he found the accused strangulating the victim and ultimately accused committing her murder.

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The case of the prosecution was based on the following evidence:

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i) The circumstance of motive that the accused tormenting the victim suspecting her fidelity;

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ii) The evidence of PW.1 eyewitness; iii) The medical evidence regarding cause of death; iv) The circumstance that soon after the death the

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accused was found missing from the house;

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v) The recovery of MO 1 ligature material on the basis

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of the voluntary statement of the accused and;

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vi) The evidence of official witness

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Reg. Motive:

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There is no dispute with regard to the marriage of the parties and PWs.1 and 3 being their sons and accused, deceased and PW.1 living as tenants in the house of councilor Yellappa in Vinayaka Nagar, Shikaripura Town. PWs.1 and 3 the sons and PW.9 the sister of the deceased consistently deposed that since 2 to 3 years prior to the death of the victim the accused started harassing the victim suspecting her fidelity. They also deposed that the accused was imputing adultery to the victim with PW.2. PWs.1, 3 and 5 further deposed that despite advising the accused in the matter, he was repeating his conduct.

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The evidence of the above witnesses could not be impeached by the defence counsel in that regard. As against that in the cross-examination of PW.1 the accused himself suggested that there used to be quarrel between accused and deceased in the matter of PW.2 Nagaraj Nayak. PW.1 further stated in the cross-examination that with whomsoever his

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mother spoke, the accused was imputing the illicit relationship with such people. He had even gone to the extent of suspecting PW.1 himself in that regard. The accused himself suggested to PW.1 that the neighbors were suspecting relationship between PW.2 and the victim.

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Accused himself suggested to PW.1 that he had warned to PW.2 not to visit his house still PW.2 was visiting the house in the absence of the accused and that was being disliked by the accused. Similar suggestions were made to PWs.2 and 3 also. In the ordinary circumstance, the accused is nearer and dearer one to PW.1 and PW.3, therefore there was no reason for them to falsely implicate the accused. Even in his examination under Section 313 Cr.PC the accused suspects PW.2. His explanation was that PW.1 was not studying well and his advise in that regard was not heeded by him. He has further stated that PW.2 got a motorbike for PW.1, therefore mother and children have united and filed a false case against him. But such suggestions were not made in the cross-examination of PWs.1 and 3. By the time the complaint was filed, the mother was already dead. Therefore such defence for false implication deserves no merit. By the evidence discussed above, the

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prosecution had proved the circumstance of motive beyond reasonable doubt.

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Reg. Cause of death:

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According to the prosecution, the victim died a

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homicidal death in the house of the accused and victim in Shikaripura Town. In the evidence of the prosecution witnesses the accused did not dispute the date, time and place of death. To prove that the death was homicidal one, the prosecution relied on the evidence of PW.7 the doctor who conducted the postmortem examination on the dead body of the victim and the PM report Ex.P14 and Ex.P19 the opinion with reference to MO1 the ligature material.

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PW.7 is an independent witness. He deposed that on 10.10.2014 on the requisition of the Magistrate he conducted postmortem examination on the dead body of the victim Shantha between 9.30 and 11.30 P.M. During such examination he found the following injury:

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“A faint ligature mark of 15cm X 10cm in length present over the front and right side of the neck”

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He further deposed that on cut section of the neck

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muscles contusions were found and those injuries were ante

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mortem in nature. He ultimately opined that the death was due

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to asphyxia as a result of ligature strangulation. In the cross examination the death being due to ligature injury was not disputed. As against that, it was suggested to him in the crossexamination that death was due to suicidal hanging. Whereas in the cross-examination of PW.1 accused himself suggested that the deceased used to lend money on interest, therefore somebody who has grievance against her have committed her murder. Such suggestion coupled with the evidence of PW.7 probobalises the fact that the death was due to homicidal strangulation.

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That was further corroborated by the evidence of PW.1 eyewitness. The evidence of PW.1 was sought to be disbelieved on the ground of delay in filing the complaint and secondly that if he was present at the scene of offence he could have saved the victim. The fact that PW.1 was residing with the accused and the deceased in the same house is not in dispute. PW.1 clearly deposed that on that day at 10.00 a.m. a quarrel ensued between the accused and the deceased and accused assaulted the victim abusing her that she is unchaste. He further deposed that though after pacifying the quarrel he left

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for the work, at the work place he developed anxiety in view of

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his domestic front scene, therefore, he returned home.

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PW.1 deposed that when he returned home at

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11.30 a.m. the door of the house was open and he found the accused strangulating the victim with the towel near bathroom of the house. He further deposed that by the time he reached his mother for rescue the accused tightened the towel, his mother collapsed to the ground and she was found dead. The accused could not elicit any thing in his cross-examination to impeach him. Therefore the Trial Court was justified in holding that death of the victim was homicidal one and the accused was the author of the death.

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Reg. circumstance of discovery of M.O.1

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According to the prosecution on his arrest, the accused volunteered to show the place where he had concealed M.O.1 towel used for strangulating the victim. It is their further case that he led the Investigating Officer PW.11 and PW.6 mahazar witness to the house where the incident took place. He showed M.O.1 which was placed on the table in the Hall of the house. That was seized under the mahazar Ex.P11. To call it a discovery under Section 27 of the Indian Evidence Act,

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1872 that should be within the special knowledge of the accused alone. In the case on hand, the towel was placed on the open table that too in the house where PW.1 and other witnesses were found soon after the incident.

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PW.1 in the complaint itself does not say that the accused concealed or carried away M.O.1. Thus it is clear that PW.11 the Investigating Officer in his over anxiety to make the investigation more strong has resorted to the circumstance of recovery under Ex.P11. But, that itself does not falsify the entire case of the prosecution as the evidence of PW.1 eye witnesses is found to be of sterling quality and the same is corroborated by the medical evidence and the other evidence on record.

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Reg. delay in filing the complaint.

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The incident took place at 11.30 a.m. The complaint was registered at 2.30 p.m. The FIR was delivered to the Court at 4.10 P.M. Thus there was no such inordinate delay in filing the complaint. Further PW.1 in his cross examination explains saying that on seeing the incident he was not able to decide what has to be done. One has to be aware of the fact that mother is the victim and father is the culprit. PW.1 was

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aged hardly 22 years. He was working as a painter. He was not well qualified. On seeing such incident it is quite natural that he suffers a trauma. Therefore, such delay of about three hours in filing the complaint cannot be called as inordinate delay leading to suspicion.

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The evidence of PW.1 in that regard was further corroborated by the evidence of PW.3-the elder brother, who says in his cross examination that when he asked his brother why there was delay of two hours in informing about the incident, he told him that he was not able to comprehend what to do. Having regard to the gravity of offence, relationship between the parties, their social and economic background, it cannot be said that there was unexplained inordinate delay so as to belie the case of the prosecution. In the similar circumstance the Hon’ble Supreme Court in para 11 of the judgment in M.Nageswara Reddy vs. The State of Andhra

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Pradesh¹ held that 7 hours delay in filing the complaint and 24 hours delay in delivering the FIR to the Magistrate is not fatal to the case of the prosecution.

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1 Crl.A.Nos.72-73/2022

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Reg: Conduct of Accused.

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By the above discussed evidence the presence of the accused, PW.1 and the deceased at the scene of offence was proved beyond reasonable doubt. The death being homicidal one is also proved. Under such circumstance, Section 106 of the Indian Evidence Act requires the accused to explain how such death took place. By the aforesaid evidence the prosecution discharged its initial burden of establishing the charge. Therefore, it was for the accused to rebut such evidence by probable defence.

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It is not the case of the accused that after death of the victim he had remained in the house. Why he left the house is not explained either in the cross examination of the prosecution witnesses or in his statement under Section 313 Cr.P.C. Though he suggested two inconsistent theories with regard to the cause of death one being suicidal and other being homicidal, he does not take steps to inform the police about the death of the victim who was none else but his wife having married to him 24 years prior to the incident. Such conduct of the accused becomes relevant under Section 8 of the Evidence Act. The trial Court considering the fact and circumstances and

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on sound appreciation of the evidence on record convicted the

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accused.

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So far as the sentence, the minimum sentence

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prescribed for the offence of murder under Section 302 of IPC is life imprisonment. It cannot be said that the award of sentence suffers any illegality.

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So far as the sentence of fine, learned Amicus Curiae submits that since the accused is in judicial custody and the records show that he is handicapped person, the sentence of fine imposed is on the higher side. Neither in the cross examination of any of the prosecution witness nor in his statement under Section 313 Cr.P.C. accused himself claimed that he was handicapped person. Therefore such contention carries no merit.

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So far as the accused being in judicial custody, the convicted criminals who are serving the sentences are entitled to earn by working in jail. Thereby the accused can pay the fine amount out of the income so earned and if so far he has not worked, henceforth he can work and pay the fine amount. It is to be noted that he has killed a woman who left back her

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parents and her family members and took refuge under him with the trust. But first he killed her soul by attaching stigma of infidelity after 24 years of conjugal life and having two grown up sons, tormented and humiliated her, ultimately killed her physical frame snatching her breath. Therefore this Court does not find any reason to reduce the fine amount. At the most the default sentence can be reduced. The appeal deserves to be allowed only to that extent. Hence the following:

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ORDER

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i) The appeal is partly allowed. ii) The impugned judgment of conviction of the accused for the offence under Section 302 of IPC is hereby confirmed. The impugned order of sentence is modified as follows:

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a) For the offence under Section 302 of IPC, the appellant/accused is sentenced to rigorous life imprisonment and sentence of fine of Rs.30,000/-. In default to pay the fine amount he shall undergo rigorous imprisonment for one year.

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b) The order of the trial Court with regard to disposal of the properties is maintained.

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c) The trial Court shall issue modified conviction warrant accordingly.

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The Court places on record the able assistance rendered

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by Sri Pramod Chandra, learned Amicus Curiae. Registry is directed to disburse him the admissible honorarium.

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Sd/JUDGE

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Sd/JUDGE

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AKC List No.: 1 Sl No.: 12

Udayakumar K v. the State of Karnataka

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What is this about?

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Udayakumar K v. the State of Karnataka

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