Dismissed

Narayana v. State by Aldur Police Station

Karnataka HC12 Feb 2024CRL.A/542/2018

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court rejected the contention that hostile witnesses broke the chain of evidence. Upholding the conviction under Section 302 IPC for the murder of a newborn, the court relied on medical evidence, the appellant's false hospital history, and the burden of proof under Section 106 of the Evidence Act.

What did the court decide?

The criminal appeal is dismissed; the conviction and sentence are upheld.

Narayana Vs State by Aldur Police Station — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:5758-DB CRL.A No. 542/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF FEBRUARY, 2024

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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 VENKATESH NAIK T

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CRIMINAL APPEAL NO.542/2018

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BETWEEN:

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NARAYANA S/O PORAL AGED ABOUT 36 YEARS RESIDING AT HANDI, HOSAPETE ALDUR HOBLI CHIKKAMAGALURU - 577 101.

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…APPELLANT

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(BY SRI PAVAN M., ADVOCATE, FOR SRI GIRISH B. BALADARE)

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AND:

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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STATE BY ALDUR POLICE STATION CHIKKAMAGALURU REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001.

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(BY SRI VIJAYA KUMAR MAJAGE, S.P.P-II)

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…RESPONDENT

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 21.02.2018 AND ORDER OF SENTENCE DATED 22.02.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, AT CHIKKAMAGALURU, IN SESSIONS CASE NO.74/2017, CONVICTING THE APPELLANT-ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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

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NC: 2024:KHC:5758-DB CRL.A No. 542/2018

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J U D G M E N T

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Challenging the judgment and order of conviction and sentence passed against him, the accused in S.C. No.74/2017 on the file of the Principal District and Sessions Judge, Chikkamagaluru, has preferred this appeal.

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The appellant was prosecuted in S.C. No.74/2017 for the charges under Sections 302 and 201 Indian Penal Code, 1860 (for short, 'IPC') on the basis of the charge-sheet filed by Aldur Police in Crime No.44/2017 of their Police Station.

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For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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The admitted facts of the case are as follows:

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The accused and PW7 were married about seven years prior to 22-2-2017 and out of the said marriage, the couple had three daughters. PW1/complainant is the younger brother, PW5 is the mother, PW11 is the brother-in-law and PW12 is the sister-in-law of the accused. On 22-2-2017, PW7 gave birth to a baby girl in the house of the accused. Thereafter, she was

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NC: 2024:KHC:5758-DB CRL.A No. 542/2018

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admitted in Hassan hospital, but the child was not taken to the hospital. The child was found dead in the house of the accused. The dead body was wrapped in a cloth and kept in the loft of the house of the accused.

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The case of the prosecution in brief is as follows:

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That PW1 filed complaint as per Ex.P2 before Aldur Police alleging that dead body of the new born girl child of the accused is found in the loft of the house of the accused in a bag with some ligature material on the neck and the death is suspicious, therefore, investigation shall be conducted in the matter. Based on that, PW9-Assistant Sub-Inspector of Police registered UDR in UDR No.8/2017 and handed over further investigation to PW15. PW15-Sub-Inspector of Police conducted inquest-cum-spot mahazar as per Ex.P7, prepared sketch of scene of offence as per Ex.P23, recorded the statement of the witnesses, forwarded the dead body for Post-Mortem examination and handed over further investigation to PW13. On the same day, PW1 submitted another complaint as per Ex.P1 before PW.14 stating that since the fourth child was also a girl child, the accused finding the same as a burden, strangulated the child, kept the dead body in the loft of the house and then,

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he has taken PW7-his wife to the hospital. Based on the same, PW14 registered FIR as per Ex.P22 and handed over further investigation to PW13. PW13-Circle Inspector of Police of Chikkamagaluru Rural Circle during investigation arrested the accused and upon completing investigation, he filed the chargesheet.

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The trial Court on hearing the parties framed the charges against the accused for the offences punishable under Sections 302 and 201 of IPC. Since the accused denied the charges, trial was conducted. In support of the case of the prosecution, PWs.1 to 15 were examined and Exs.P1 to P23 were marked. On recording his examination under Section 313 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), the accused did not choose to file defence statement or lead defence evidence.

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The trial Court on hearing the parties by the impugned judgment and order acquitted the accused of the charge under Section 201 of IPC and convicted him for the charge under Section 302 of IPC. The trial Court sentenced the accused for the offence punishable under Section 302 of IPC to

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imprisonment of life and fine of Rs.5,000/- with default sentence. The trial Court held that though the case is based on circumstantial evidence and the relatives and villagers of the accused have turned hostile, evidence of the Doctor-PW8 and the post-mortem report show that the death was homicidal one. The trial Court further held that the accused had admitted PW7 into the hospital with the false history of she suffering an abortion and he failed to explain the death of the victim. Thus, convicted and sentenced the accused.

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Sri Pavan M., learned counsel for the appellant, reiterating the grounds of the appeal, submits that since the case is based on circumstantial evidence, the prosecution has to establish all the circumstances set up by it by cogent and consistent evidence. He further submits that all the material witnesses, namely PWs.1 to 7, turned hostile to the alleged overt act of the accused, thereby, the link of circumstance of motive and the accused being author of the death of the child was broken. The trial Court having acquitted the accused of the charge under Section 201 IPC and based on the same evidence, convicted him for the offence under Section 302 IPC

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which is self-contradictory. Hence, the impugned judgment and

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order of conviction and sentence is liable to be set aside.

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Per contra , Sri Vijaya Kumar Majage, learned State Public Prosecutor-II, submits that the child died in the house of the accused. Therefore, it was for him to explain how the child died. His claim that the child was born dead stood falsified by the evidence of PW8 coupled with the circumstance of the accused making false representation before the Doctor in the hospital at Hassan that PW7 had suffered abortion. Since the accused failed to explain the death of the child, he failed to rebut the presumption under Section 106 of the Evidence Act. He submits that even before the Court, the accused did not explain why he suppressed before the Doctor about his wife delivering a child. That itself shows the guilt of the accused. PWs.1, 5, 7, 11 and 12 being the close relatives of the accused were interested in him. They have turned hostile apparently to protect him. The trial Court rightly took note of the said fact and was justified in convicting the accused based on the evidence of PW8, other official witnesses and Ex.P18.

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Considering the submissions of both sides and examining the material on record, the point that arises for determination of this Court is:

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Whether the impugned judgment and order of conviction and sentence for the offence under Section 302 is sustainable?

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Analysis

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There is no dispute regarding the relationship between the accused and PWs.1, 5, 7, 11 and 12. It is also not disputed that the accused and PW7 in their marital life of seven years by 22-2-2017 had three daughters. It is also not in dispute that PW7 delivered her fourth daughter on 22-2-2017 at 3:40 p.m. in the house of the accused and thereafter, the accused took PW7 alone to Hassan hospital and admitted her in the said hospital with the history of abortion of 3½ months fetus. It is also not disputed that the dead body of the fourth child was traced in the house of the accused in Handi Village within the limits of Aldur Police Station.

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The prosecution claims that the accused committed the murder of the just born baby girl by strangulating her with

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MO1-veil and wrapping the dead body in a cloth, concealed the same in the loft of his house. Whereas the accused claims that the child was born dead and he has not committed the murder. It is true that PW1 though filed the complaint-Ex.P1 implicating the accused as the author of the death of the child, he turned hostile. PW7-mother of the child also though disputes the statement given as per Ex.P10 before the Investigating Officer implicating the accused, she admits that the fourth child was born in the house itself. In the cross-examination by the Public Prosecutor, further admitted that though she disputed that on seeing the incident she lost consciousness, in the next sentence, she admits that when she regained consciousness, she was admitted in the Hassan hospital. She further admits that when she regained consciousness, she came to know that the child was kept in a bag in the loft of the house of the accused.

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Exs.P3 to P6 are the photographs of the dead body of the child. Those photographs were admitted by all the witnesses including the accused. Ex.P6 shows that the neck of the child was coiled with MO1-veil. The only contradiction tried to be pointed out about MO1 being a ligature material is that in

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Ex.P7-inquest mahazar it is stated that during inquest mahazar, the said veil was cut, then how could it be found coiled around the child when the dead body was sent for Post-Mortem examination. No doubt in paragraph No.8(c) of Ex.P7-inquest mahazar while referring to the ligature material-MO1, it is said that the neck of the child was coiled with a cloth containing flower prints in black, white and pink colour and during mahazar that was cut and the measurements were taken. PW15-Investigating Officer in paragraph No.5 of his crossexamination states that lady panch (PW4) untied MO1 from the neck of the child. The accused himself suggested to PW15 that Ex.P5-photograph was taken after removing the ligature material. Ex.P5 is the photograph which is taken after removing the ligature material. The above suggestion of the accused himself goes to show that there was ligature material on the neck of the child during inquest mahazar and that was later removed. The accused has to explain how that cloth came around the neck of the child.

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PW8-Doctor, who conducted Post-Mortem

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examination is an independent witness. She states that on 23-2-2017 between 3:50 and 4:40 p.m., on the requisition of

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the Police, she conducted Post-Mortem examination on the dead body of the child. She deposed that around the neck of the child, there were two ligature marks and the ligature material was coiled around the neck of the child. It is no doubt that there is some inconsistency in the evidence of PW8, other witnesses and in inquest mahazar regarding the ligature material being around the neck of the child even when it was sent for Post-Mortem examination. However, PW8 consistently states that death of the child was due to strangulation. In Ex.P11, Post-Mortem report, she has opined that death was due to asphyxia due to compression of neck as a result of ligature strangulation. She denied the suggestion that the death of the child was due to the umbilical cord coiling around the neck of the child. The accused himself suggested to PW8 in the cross-examination that, if the cloth is tightened near the neck of the just born child the ligature mark found on the dead body could occur. She denied the suggestion that the child was born dead. She also deposed that upon dissection of neck region, extravasations of blood was seen in sub-cutaneous tissues and the death was 18 to 24 hours prior to the conduction of Post-Mortem examination.

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PW7 in her cross-examination by the Public Prosecutor, after admitting Exs.P4 to 6-photographs, stated that when she delivered the fourth child, herself and the accused were alone in the house. He did not dispute the said fact in the cross-examination of any of the witnesses or in his examination under Section 313 of Cr.P.C. If the child was born dead, his natural conduct would be to inform the neighbours or relatives and then take his wife to the hospital. If the death was natural one, he could have made some arrangements for last rites of the child or at least, he could have taken the child to the hospital for examination.

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Ex.P18 is the copy of the case sheet relating to PW7 maintained by the Hassan Institute of Medical Sciences which was marked in the evidence of PW13 and the same was not disputed. The entries in Ex.P18 show that the accused had taken PW7 to HIMS hospital with the history of 3½ months of amenorrhea, complaint of bleeding p.v. The accused himself signed the consent form in Ex.P18, where he has claimed that his wife was 3½ months pregnant, aborted the child and after abortion, she is suffering severe bleeding. The said record further shows that blood transfusion was made to PW7 and she

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was discharged from the hospital on 3-3-2017. In the case sheet dated 24-2-2017, in Ex.P18, the Doctor has recorded as follows:

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"Patient is giving h/o 9 months of amenorrhea and she delivered and came here. She said she doesn't know about the baby".

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That goes to show that when PW7 was admitted into the hospital, the accused gave history that PW7 suffering abortion, is inconsistent with his own defence during the trial that the child was born dead. The above facts go to show that PW7 on 24-2-2017 divulged before the Doctor that she delivered the child after nine months of her pregnancy and she does not know about the baby. That corroborates the prosecution’s version that on seeing the incident, PW7 lost consciousness and regained consciousness in the hospital. Ex.P18 shows Haemoglobin level of PW7 as on 22-2-2017 when she was taken to the hospital was just 3.3. In Ex.P18 the age of PW7 is shown as 25 years. Before the Court as on 16-1-2018, she has given her age as 28 years. The incident took place in February 2017. Even if her statement is accepted in 2017 she would be 27 years and by that time she had given birth to four children

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including the victim child. She had the burden of taking care of herself and her other children, who are surviving. Though the victim child was her own flesh and blood, she was in a situation between devil and deep-sea. If she had given evidence against her husband, he would have been incarcerated making herself and other three children destitute. The same is the case with other relatives of the accused. Therefore, the trial Court rightly held that those witnesses have deliberately turned hostile.

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Section 106 of the Evidence Act states that when any fact is within the special knowledge of any person, the burden of proving the said fact is upon him. In the present case also, since the child died in his house, the accused had the burden to explain why he wrapped the child in the cloth and stuffed that into a bag and left at home and went to the hospital with his wife-PW7 and why he gave a false history before the Doctor in HIMS hospital. He did not choose to explain the same. If the death was due to coiling of the umbilical cord around the victim child's neck, there was no reason for the accused to suppress the said fact either before the Doctor or before PW1. Similarly, if the death was due to asphyxia by umbilical cord, PW1 would have reported to the

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police accordingly. Such conduct of the accused was rightly noted by the trial Court as the conduct of guilty person.

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So far as the motive for the crime, according to the prosecution, the accused was irked by the victim being successive fourth female child. He having three daughters prior to the incident is not disputed. Last child/victim was a girl is also not in dispute. The above discussion goes to show that the accused has done the child to death. Overall appreciation of the evidence and circumstances show that the only cause for the accused to take away the life of the child was his perception that the girl child would be a burden to him.

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Learned counsel for the appellant relying on the judgment of the Hon'ble Supreme Court in Maniram v. State of U.P.¹ submits that when the medical evidence is totally inconsistent with the prosecution witnesses, the same discredits the entire prosecution case. In the present case, only the interested witnesses i.e. PWs.1 to 7, 11 and 12 have turned hostile. Despite turning hostile, PW7-mother of the child, when examined by the Public Prosecutor, admitted that at the time of

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1 1994 SCC, SUPL.(2) 289

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birth of the child, herself and the accused were alone in the house. Though the accused suggested to her that midwife carried out the delivery and she declared the child dead, the name of the midwife was not whispered by him. He did not examine the said midwife. In Maniram's case referred to supra , Sections 106 and 8 of Evidence Act were not in question. The aforesaid facts, the conduct of the accused suppressing his wife delivering the child after completing nine months and giving false history before the Doctor becomes relevant under Section 8 of Evidence Act. Further, in view of Section 106 of Evidence Act, he had the burden of proving the fact that the child was born dead due to the umbilical cord coiling around the neck of the child. He did not examine the alleged midwife to prove the said fact nor he stated so in his examination under Section 313 Cr.P.C. nor did he inform anybody at the earliest point of time about the death of the child due to such reason. Therefore, the judgment in Maniram's case referred to supra cannot be justifiably applied to the present case.

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The aforesaid facts and circumstances of the case goes to show that though the relatives of the accused turned hostile, the medical evidence and evidence of official witnesses

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coupled with the conduct of the accused is sufficient to hold that the prosecution has proved the charge of commission of murder beyond reasonable doubt. The trial Court on sound appreciation of the material on record has rightly convicted the appellant for the offence under Section 302 IPC. The same does

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not warrant interference of this Court. Hence, the following:

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O R D E R

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The appeal is dismissed.

Sd/JUDGE

Sd/JUDGE

KVK

List No.: 1 Sl No.: 4

Narayana v. State by Aldur Police Station

Case brief

What is this about?

What did the court decide?

Narayana v. State by Aldur Police Station

Case brief

What is this about?

What did the court decide?

What the court decided

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