Udayakumar Vitthalarao Kambale Vs the State of Karnataka

C/O. 86, S.K.MAHISHI, RADHAKRISHNA NAGAR, DHARWAD-580003, NOW PLOT NO.1, UNAKAL CROSS, SHIVAGIRI YAVAGAL BUILDING, HUBBALLI. …APPELLANT (BY SRI. K.L. PATIL, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA THROUGH VIDYANAGAR POLICE STATION, HUBBALLI, DIST. DHARWAD. NOW REP. BY S.P.P., HIGH COURT OF KARNATAKA,

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HC-KAR

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DHARWAD BENCH-580011.

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…RESPONDENT

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(BY SRI. A.M. GUNDAWADE, ADDITIONAL SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C 1973., PRAYING TO CALL FOR RECORDS IN S.C.NO. 119/2016 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI AND ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 01.07.2022 AND ORDER OF SENTENCE DATED 02.07.2022 IN SESSIONS CASE NO.119/2016 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI AND THEREBY ACQUIT THE APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND

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THE HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

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This appeal is directed against the judgment of conviction dated 01.07.2022 and order of sentence dated 02.07.2022 passed in Sessions Case No.119/2016 by the I Addl. District and Sessions Judge, Dharwad, Sitting at Hubballi (hereinafter

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referred to as the ‘learned Sessions Judge’), whereby the appellant/accused was convicted for the offence punishable under Section 302 of IPC and was sentenced him to undergo imprisonment for life and to pay a fine of Rs.55,000/-, in default of payment of fine, to undergo simple imprisonment for a period of 6 months.

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Briefly stated, the facts of the prosecution case are

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as follows:

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The deceased-Seema is the wife of accused-Udayakumar Vitthalarao Kambale. The accused was working as a lecturer in P.C Jabin College, Hubballi and deceased was working as a lecturer in K.C.D College, Dharwad. They were married on 26.12.2012 and were residing in a rented house bearing No.CTS3481/A2/01 belonging to Anil kumar-PW.1. The accused was a short tempered person, who used to quarrel with the deceased frequently, as she did not know cooking and was not good looking. He had threatened her of murdering her is she did not give divorce to him. On 18.04.2013 between 11:15 a.m. and 12:00 noon, the accused picked up a quarrel with deceased in the house and stabbed repeatedly on her abdomen, chest back and other parts of the body with M.O.1-

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knife. PWs.3, 6, CWs.13 and 14 over heard the quarrel. Thereafter, they went to the house of the accused and saw through the window that the deceased was lying in a pool of blood. Hence, PW.3 informed the same to PW.1 i.e., her husband and PW.1 in-turn lodged a complaint as per Ex.P1 before the Vidyanagar Police Station, Hubballi on 18.04.2013 at about 02:30 p.m. On the strength of Ex.P1, PW.21-the Police Inspector registered a FIR as per Ex.P38 against accused in Crime No.96/2013 for the offence punishable under Section 302 of IPC. Subsequently, PW.21 investigated the case by conducting inquest panchanama on the body of deceased, drew the spot mahazar, recovery mahazar and recorded the statement of witnesses and obtained necessary documents from the concerned authorities. The accused was absconding since the date of incident. Hence, PW.21 laid a charge sheet against the accused before the committal Court for the offence punishable under Section 302 of IPC by showing the accused as absconding. Later, on 23.06.2016, the accused surrendered before the Investigation Officer and he was produced before the committal Court and remanded to judicial custody. Thereafter,

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the case was committed to the learned Sessions Judge on 12.08.2016.

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After committal of the case before the Sessions

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Court, the learned Sessions Judge framed charges against the accused for the aforementioned offence and the same was read over to him. The accused denied the charges leveled against him and claimed to be tried.

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In order to prove the charges leveled against the accused, the prosecution examined 21 witnesses as PW.1 to PW.21, marked 71 documents as Ex.P1 to Ex.P71 and identified 16 material objects as M.O.1 to M.O.16. The accused not examine any witness on his behalf but marked 2 documents as per Exs.D1 and D2.

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After assessing the oral and documentary evidence placed before the Sessions Court, the learned Sessions Judge convicted appellant/accused for the charges leveled against him and sentenced him as stated supra. The said judgment of conviction and order of sentence is challenged in this appeal.

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We have heard the learned counsel Sri K.L. Patil for

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the appellant and learned Addl. State Public Prosecutor Sri A.M. Gundawade for the respondent-State. We have also perused the records made available before us.

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The primary contention of the learned counsel for the appellant is that the judgment of conviction and order of sentence passed by the Sessions Court suffers from perversity and illegality. The learned Sessions Judge has grossly erred while convicting the appellant without duly appreciating the evidence and documents placed before him. He contended that the case of the prosecution rests on circumstantial evidence and the prosecution failed to prove the links in the chain of circumstance by adducing cogent evidence. According to the learned counsel, the learned Sessions Judge while convicting the accused, significantly relied on the evidence of PWs.3 and 6, who allegedly over heard the quarrel between the accused and deceased on the fateful day. However, both these witnesses categorically stated that they heard the deceased screaming for help. Hence, they rushed to her house and at that time the door was locked from inside and therefore, they returned. Later, CW.13 one Savitha allegedly saw the accused

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leaving the house in a hurried manner with a bag in hand after locking the door from outside. The complaint-Ex.P1 also disclosed it. However, CW.13 was not examined by the prosecution to prove the said aspect. PWs.3 and 6 though stated in their evidence that they also saw the accused carrying bag and walking towards Adarsha College but the only witness who saw the accused locking the door of the house and leaving the place after the incident was CW.13. Hence, non examination of CW.13 by the prosecution is fatal to the prosecution case. The learned counsel further contended that, except the evidence of PWs.3 and 6, there was absolutely no corroborative evidence on record to connect the accused with the offence. He further contended that the circumstantial witnesses-PWs.7, 8 and 14 turned hostile to the prosecution case. PW.1-complainant is a hearsay witness to the incident. Additionally, he contended that there is no recovery at the instance of accused. In such circumstance, the prosecution miserably failed to prove the charges leveled against the accused beyond all reasonable doubt. Accordingly, he prays to allow the appeal.

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Per contra , the learned Addl. SPP for the respondent-State contended that, judgment under this appeal neither suffers from perversity nor illegality as the learned Sessions Judge has meticulously examined the evidence on record and passed a well-reasoned judgment which does not call for any interference. He submitted that the deceased is the wife of accused and they both were residing in a rented house of PWs.1 and 3. According to PWs.3 and 6, the accused was very much present in the house at the time of incident. They stated in their evidence that on the fateful day, on hearing the screams of deceased, they went near the house of accused. The door was locked from inside, as such, they knocked the door. At that time, they the heard the sound of deceased shouting for help. However, the door was not opened; they heard the accused threatening the deceased. Later, they saw the accused leaving the house with a bag in hand towards Adarsha College. The learned Addl. SPP also contended, the accused being the husband of deceased failed to explain the circumstance as to how his wife died a homicidal death in his house. Further, he was absconding for a period of 3 years after the incident and finally, surrendered before the Investigation

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Officer in the year 2016. Hence, he contended that the learned Sessions Judge rightly drew a presumption against the accused as contemplated under Section 114 of the Indian Evidence Act. He contended that, prosecution also placed electronic evidence i.e., CCTV footage installed in the building which showed that the accused was walking towards Adarsha College hurriedly by holding a bag immediately after the incident. In such circumstance, he contended that the prosecution has successfully established the guilt of accused beyond all reasonable doubt. Accordingly, he prays to dismiss the appeal.

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Having heard the learned counsel for the respective

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parties and also on perusing the entire evidence on record including the impugned judgment, the following points arise for our consideration:

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i. Whether the judgment under this appeal suffers from either perversity or illegality?

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ii. Whether the learned Sessions Judge is justified in convicting the appellant/accused for the offence punishable under Section 302 of IPC?

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In order to prove the homicidal death of the deceased, the prosecution predominantly relied on the evidence of PW.9-Doctor who conducted the autopsy of the deceased and submitted the postmortem report as per Ex.P24. On a careful perusal of Ex.P24, the deceased had sustained 26 stab injuries, PW.9 gave his opinion regarding the cause of death as due to ‘shock and haemorrhage as a result of stab wounds sustained’. He also stated, all the injuries sustained by the deceased were ante-mortem in nature. Additionally, the prosecution also relied on Ex.P20-inquest panchanama, drawn by PW.4-the Tahsildar. PWs.1 and 5 were the witnesses for the same who identified the injuries on the body of deceased. Hence, on a collective reading of the evidence of PWs.9, 4, 1 and 5 coupled with Exs.P24 and P20, we are of the view that the prosecution proved the homicidal death of the deceased beyond all reasonable doubt.

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To connect the accused to the homicidal death of deceased, the prosecution significantly relied on the evidence of PWs.1, 3, 6, 16, 20 and 21-the Investigation Officer. On a careful examination of the evidence of these witnesses, PW.1Anil Kumar is the owner of house bearing No.CTS 3481/A2/01,

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where the accused and deceased were residing. PW.3 is the wife of PW.1. According to PW.1, the accused and deceased were residing in the ground floor of his residential building on rent from December, 2012. To substantiate the same, the prosecution relied on Ex.P2-Rent agreement. PW.1 further stated, on 18.04.2013 between 12:00 noon and 12:30 p.m. when he was in the Court, he received a phone call from PW.3 that the house of accused is locked from outside and the deceased-Seema was lying in a pool of blood inside the house. Immediately, he informed the same to respondent-Police and rushed to the house. Later, the Police came to the spot and they saw the body of deceased through the window and thereafter, they broke open the lock of the door with the help of PW.11 and entered the house. He further stated, CW.13 informed him that, after the incident the accused had locked the door of his house and left the place hurriedly. On a careful perusal of the evidence of PW.1, he reiterated the assertion made in the complaint-Ex.P1 before the Court. Though he is a hearsay witness to the incident, it could be gathered from his evidence that the accused and deceased were residing in his building on rent and on the fateful day, the deceased died due

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to the stab injuries in his house. Ex.P1-complaint was lodged by PW.1 soon after the incident. The evidence of PW.1 corroborates the testimony of PWs.3 and 6. PW.3 is the wife of PW.1 who stated that ever since the accused and deceased occupied their house, the accused was quarrelling with his wife as she did not know to cook and was not good looking. She claimed that the mother of deceased had informed her about the issues between the accused and the deceased. Further, she deposed that, on the date of incident, at about 11:15 a.m., she heard the screams of deceased for help. Hence, she along with PW.6 and others went there and knocked the door, but it was locked from inside and the deceased was screaming for help. She also heard the accused shouting at the deceased. However, the door was not opened and hence, she and PW.6 returned from there. After 15 to 20 minutes, she saw the accused going outside the house towards Adarsha College by locking the door of his house. Immediately, she and PW.6 went to the house of accused and saw through the window that the deceased was lying in a pool of blood with stab injuries. Immediately, she informed the same to her husband-PW.1 through phone. Later, PW.1 and Police came to the spot and PW.1 lodged a

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complaint-Ex.P1. This evidence of PW.3 clearly corroborates the testimony of PW.6 who is also a tenant under PWs.1 and 3.

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PW.6 reiterated the evidence of PW.3 by stating, she along with PW.3 went to the house of accused on the date of incident at about 11:30 a.m. and thereafter saw the accused leaving the house. She also identified the body of deceased.

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What can be gathered from the evidence of these two witnesses, is that though they did not see the accused stabbing the deceased, but they have unequivocally deposed that, at the time of incident the accused and deceased were inside the house and they heard the screams of deceased for help and the accused shouting at her. After 15 minutes, they saw the accused going towards Adarsha College by holding a bag. Immediately thereafter, they went to the house of accused and found that the door was locked. As such, through the window they was the body of deceased lying in a pool of blood in the house.

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It is vehemently contended by the learned counsel for the accused that CW.13, who allegedly saw the accused locking the door of his house and hurriedly leaving the place

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was not examined by the prosecution. According to him, complaint-Ex.P1 was lodged soon after the incident and showed the name of CW.13. In such circumstance, he claimed that the evidence of PWs.3 and 6 cannot be relied to prove that the accused was in the house at the time of incident.

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We have carefully analyized the evidence of PWs.1, 3 and 6. All these witnesses have consistently stated that the accused and deceased were residing in the house before the incident. PWs.3 and 6 in their evidence stated that after the incident the accused was proceeding towards Adarsha College after locking the door of his house. The Investigation Officer obtained CCTV footage installed in front of Adarsha College, Linagaraj Road, Hubballi on 20.12.2011. PW.15 deposed that he installed the said CCTV in the said College. PW.19 copied the CCTV footage on 18.04.2013 onto a DVD-Ex.P18. PW.20 the Scientific Officer of TRUTH LABS issued the authentication certificate-Ex.P37 and deposed that the visuals in the CCTV and DVD are not edited or doctored or morphed. We have watched the contents of DVD-Ex.P18. On careful perusal it is seen that on the date of incident i.e., on 18.04.2013 at about 12:00 to 12:30 p.m., the accused was hurriedly walking on the main

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road towards Adarsha College by holding a bag. This electronic evidence corroborates the testimony of PWs.3 and 6. In such circumstance, non examination of CW.13 itself is not fatal to the prosecution case, since other credible evidence is available on record. Even otherwise, the accused being the husband of deceased was duty bound to explain the circumstance, as to how his wife was murdered in his house. Admittedly, the accused did not lodge any complaint nor was available in the house for a period of 3 years after the incident.

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It is contended by the learned counsel for the accused, in order to invoke Sections 106 and 114 of the Indian Evidence Act, the primary burden lies on the prosecution to place sufficient evidence against the accused. We are afraid and unable to accept the contention of the learned counsel for the accused as the prosecution placed primary evidence of PWs.1, 3 and 6 as discussed supra along with the electronic evidence of CCTV footage. Additionally, the evidence of PW.11-plumber, who broke open the door of the house of accused on the date of incident also corroborates the evidence of PWs.3 and 6 that the accused locked the door of the house after the incident and left the place. The lock and hook pieces of the door were

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identified as M.Os.7 and 11. In such circumstance, we are of the view that the prosecution has placed sufficient evidence to draw an inference against the accused that he is the perpetrator of the offence. Moreover, as stated supra, after the incident the accused was absconding for a period of 3 years and he finally surrendered before the Investigation Officer on 23.06.2016 which clearly established that in order to avoid the clutches of law, he fled abroad. Apart from this evidence, the principal of the P.C. Jabin College-PW.17 stated that the accused was working in the said college as a professor of Chemistry and remained absent since 16.04.2013, and was therefore terminated from service. The evidence of material witnesses discussed supra, further corroborates the testimony of PW.21-Investigation Officer. He clearly deposed that after registering FIR against the accused, he drew the spot mahazar as per Ex.P26 and recovered M.Os.1 to 12 including knife used for the commission of offence from the house of accused. He also deposed about the recovery of CCTV footages and the recording of statement of all the material witnesses including PWs.3 and 6. The accused also failed to offer any explanation in his statement under Section 313 of Cr.P.C, as to why the Police

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and PW.1 had falsely implicated him in the case that too in the murder of his wife. In such circumstance, we find no good reasons to interfere with the impugned judgment.

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The learned counsel for the appellant vehemently contended that, even if the act of accused is admitted for the sake of argument, then the said act comes under Exception 1 or 4 to Section 300 of IPC. On a careful perusal of the postmortem report-Ex.P24, there are as many as 26 wounds identified by the Doctor-PW.9. All those injuries were caused by M.O.1-knife by the accused. Hence, it is clear that, the accused with a clear intent to kill the deceased mercilessly stabbed her in his house. The accused acted cruelly by stabbing the deceased repeatedly. There is no evidence or circumstance to indicate that the act of the accused was committed due to a grave and sudden provocation by the deceased or in a fit of rage. The premeditative motive on the part of accused to murder the deceased is proved by his cruel act. In such circumstance, the alternative contention raised by the learned counsel for the appellant is liable to be rejected.

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On an overall appreciation of the evidence on record, we are of the view that the prosecution has proved the charges leveled against the accused beyond all reasonable doubt. Hence, interference with the impugned judgment is not warranted. Accordingly, we answer point No.1 raised above in the ‘negative’ and point No.2 in the ‘affirmative’ and proceed to pass the following.

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ORDER

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The Criminal Appeal No.100359/2023 is hereby dismissed.

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SD/(R.NATARAJ) JUDGE

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SD/(RAJESH RAI K) JUDGE

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HKV CT:PA List No.: 2 Sl No.: 2

Udayakumar Vitthalarao Kambale v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Udayakumar Vitthalarao Kambale v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

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