Mr. Murthy @ Sundara Murthy Vs the State of Karnataka

MR. MURTHY @ SUNDARA MURTHY, S/O SELLAIAH, AGED ABOUT 30 YEARS R/AT PALAMEDU HOUSE, GUDULOOR, NEELAGIRI DISTRICT NOW R/AT MANDAKARE CRC COLONY ITHURU VILLAGE, PUTTUR TALUK, D.K - 574 201.

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…APPELLANT

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(BY SRI. SUYOG HERELE E, ADVOCATE SRI. SACHIN B.S, ADVOCATE)

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AND:

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA THROUGH PUTTUR RURAL POLICE REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE - 560 001.

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…RESPONDENT

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(BY SRI. CHANNAPPA ERAPPA, HCGP)

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THIS CRL.A IS FILED U/S. 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 26.02.2013 PASSED BY THE ADDL. S.J., F.T.C., PUTTUR

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IN S.C.NO.35/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 304 PART II OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 3 YEARS AND PAY FINE OF RS.50,000/-, FOR THE OFFENCE P/U/S 304 PART II OF IPC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri. Suyog Herele E., learned counsel for the appellant and learned HCGP.

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The appellant-accused by name Murthy @ Sundara Murthy who has been convicted in S.C.No.35/2012 vide judgment dated 26.02.2013, and

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order on sentence dated 15.03.2013, for the offence punishable under Section 304 Part II of IPC, has questioned the validity of the judgment of conviction and order of sentence in this appeal. The appellant was directed to undergo rigorous imprisonment for a period of 3 years and to pay fine of Rs.50,000/- and out of the fine

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amount recovered, the entire fine amount was ordered to be paid as compensation to PW-6, Smt. Devaki, who is none other than the mother of the deceased.

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Essential factual matrix required for the disposal of the appeal on merits are as under:

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A complaint came to be lodged with Kadaba Police, Puttur alleging that the appellant hailed from Gudalur of Tamil Nadu State and he had married Parameshwari about 5 years earlier to the date of complaint and they had a son. Since there was no gainful employment for the appellant in Tamil Nadu, 8 months prior to 20.09.2011, he returned to the house of his in-laws along with his wife and son. To eke out their livelihood, Parameshwari had to fetch a job of a rubber tapper at KFDC, Rubber Plantation at Mandekara area. The appellant was not wellworsed with the tapping of rubber as it is a skilled job and he used to stay in the house of his in-laws and was attending labour work in and around Mandekara.

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3.1. The appellant being addicted to liquor,

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whenever found that he had no sufficient money, he used to demand money from his wife. When his demands were not met, the appellant used to pick up quarrel with his wife (deceased). On one such unfortunate day, i.e., 20.09.2011, there was a quarrel between the appellant and his wife with regard to the demand made by the appellant for consuming liquor and same was refused. At that juncture, the accused picked up quarrel. The quarrel got aggravated by exchange of words and accused picked up a 'kathi' which was available in the place of incident and assaulted his wife with an intention to take away her life. There were bodily injuries on her neck, head and shoulder. In resisting the assault, the appellant also got injured.

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3.2. Because of the injuries sustained by the wife of

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the appellant, on account of profuse bleeding, wife of the appellant died. In respect of the said incident, one

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Rajakumar PW-1, who is the relative of the deceased, lodged a complaint.

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3.3. Based on the complaint, detail investigation was conducted and charge sheet came to be filed. Accused was arrested and sent to judicial custody. On receipt of charge sheet, learned Trial Judge registered a case in C.C.No.2884/2011 and committed the case to the Principal District Judge, Mangalore.

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On committal, the case was made over to the Additional Sessions Judge, Fast Track Court, Puttur. Learned Judge, after receipt of records, secured the presence of the accused from the judicial custody and framed charges for the offence under Section 302 of IPC.

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The accused pleaded not guilty. Therefore, trial was held. In order to bring home the guilt of the appellant, prosecution proceeded to examine 19 witnesses as PW-1 to PW-19. Prosecution also placed on record 21 documents which were marked as Exs.P1 to P21, comprising of complaint, spot sketch, statement of PW-2

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to PW-4, inquest mahazar, seizure mahazar, PM report, opinion with regard to the weapon, FIR, wound certificate, serology report, working certificate, etc.

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Prosecution also placed on record 7 material objects which were marked as MO-1 to MO-7 comprising of chaku, kokke kathi, chudidara top, chudidara pant, bed sheet, t-shirt and lungi. Contradictions elicited in the oral testimony of PWs.1, 2 and 6 were marked as Exs.D1 to D6.

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On conclusion of recording of prosecution evidence, learned Sessions Judge proceeded to record the accused statement as is contemplated under Section 313 of the Cr.P.C., wherein accused has denied all the incriminatory circumstances put to him which were found in the case of the prosecution. The appellant did not choose to place any defence evidence. He has stated that he used to visit Tamil Nadu frequently and he was not doing job of rubber tapping. He did submit to the Court that he wanted to examine a witness, but failed to do so.

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Subsequent thereto, learned Trial Judge heard

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the arguments of the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record by the prosecution in a cumulative manner, convicted the appellant for the offence under Section 304 Part II of IPC and sentenced as referred to supra , as against the charge under Section 302 of IPC.

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Being aggrieved by the same, the appellant is before this Court in this appeal.

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Sri. Suyog Herele, learned counsel representing the appellant, vehemently contended that the acquittal of the appellant for the offence under Section 302 of IPIC having not been challenged by the prosecution, the material on record is to be considered in right perspective in modifying the sentence ordered by the learned Trial Judge.

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He also pointed out that there was no intention

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to take away the life of Parameshwari by the appellant as the appellant has also got injured in the incident. A trivial

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incident has been drawn out of proportion by the prosecution and whereby, at the most, accused should be convicted for the offence under Section 324 of IPC having caused the bodily injury voluntarily by use of weapon and therefore sought for allowing the appeal to that extent.

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Per contra , learned HCGP supports the impugned judgment by contending that the postmortem report marked at Ex.P9 would disclose that the cause of death is on account of hemorrhagic shock and sudden cardio-respiratory arrest as a result of grievous injury to the brain and spinal cord.

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He further argued that those injuries were vital injuries and were sufficient enough to take away the life of a person in the ordinary course and therefore, conviction of appellant for the offence under Section 304 of IPC which

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is meant for homicidal death having established, the learned Trial Judge has rightly convicted the appellant for the offence under Section 304 Part II of the IPC.

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He further submits that even in the absence of

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any appeal being filed by the prosecution, the prosecution can very well argue for maintaining the conviction of the appellant for the offence under Section 304 Part II of IPC and thus sought for dismissal of the appeal.

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Having heard the arguments of learned counsel for the parties in detail, this Court perused the material on record meticulously. On such perusal, the following points arise for consideration in this appeal:

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(i) Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the appellant for the offence punishable under Section 304 Part II of the IPC?

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(ii) Whether the appellant makes out a case of legal infirmity and perversity in the findings recorded by the learned Trial Judge in convicting the appellant for the aforesaid offence?

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(iii) Whether the sentence needs modification?

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(iv) What Order?

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REG. POINT NOS.1, 2 & 3: In the case on hand,

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the relationship between the deceased and the appellant is

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not in dispute. Appellant is the husband of the deceased having married her about 5 years earlier to the incident. Admittedly, the appellant did not have any permanent job at Tamil Nadu. To eke out their livelihood, since the deceased was having skill in tapping rubber, she had got a temporary job of rubber tapper in KFDC Rubber Plantation at Mandekara area. She had come along with her parents and stayed in the quarters given to the rubber tappers in the said plantation. Appellant also used to stay in the same place and he was attending small labour work in and around Mandekara.

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Further, it is found from the records that the appellant was addicted to liquor and whenever he did not get any job, he used to nag the deceased for financial help to consume liquor. There were frequent quarrels in this regard.

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On an unfortunate day, i.e., 20.09.2011, again quarrel started on account of refusal of demand made by the appellant for money to consume liquor. At that

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juncture, the appellant all of a sudden started assaulting his wife with MO-2 'Kokke Kathi' on the body parts of the deceased. As a result, she sustained several injuries.

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PW-1 Rajakumar who had also visited his quarters which was situated opposite to the quarters of the deceased, having heard hue and cry in the house of the deceased, came rushing to the said place along with PW-2 Bhagyanathan and PW-3 Vijaya Kumar. The door was locked from inside and there was lot of hue and cry. Therefore all the three peeped through the window of the house of the deceased and noted that there was assault made and the deceased had fallen down.

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Thereafter, they intimated PW-5 Angamuthu and he secured the ambulance and the injured was then taken to General Hospital, Kadaba. However, on account of the injuries sustained by the wife of the appellant Parameshwari, she had died and therefore complaint came to be lodged. After receipt of the complaint, police investigated the matter thoroughly inter alia arrested the

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appellant and filed charge sheet for the offence under Section 302 of IPC.

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The prosecution evidence comprised of Rajakumar, Bhagyanathan, Vijaya Kumar, Perappa, Angamuthu, Devaki (mother of deceased), Raja Krishna and Govinda Swamy (father of the deceased), and medical evidence in the form of Dr. Suchitra Rao who conducted autopsy on the body of the deceased, and other circumstantial witnesses.

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It is pertinent to note that, none of these prosecution witnesses did nurture any previous enmity or animosity insofar as the appellant is concerned. The witnesses examined on behalf of the prosecution have supported the case of the prosecution. No doubt, defence is successful in eliciting few contradictions in the oral testimony of PW-1, which was marked as Ex.D1 to D4 and portion of the statement in PW-2, which was marked as Ex.D5, and so also in the testimony of mother of the deceased PW-6, which is marked as Ex.D6.

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On careful consideration of the totality of the material evidence on record, it is crystal clear that the incident stands established by the oral testimony of PWs. 1, 2, 3, 6 and 8.

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Admittedly, there were blood stains on the 'T-shirt' and 'lungi' worn by the appellant and there is no explanation offered in that regard. Blood stains found on the T-shirt and lungi marked at MO-6 and MO-7 tallied with the blood group of the deceased.

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So also, the blood stains found on the chudidar top and pant marked at MO-3 and MO-4 and blood stains found on the 'kokke kathi' marked at MO-2 would sufficiently establish that the injuries caused on the body of the deceased was by use of MO-2. The opinion as to the weapon MO-1 and MO-2 corroborates the testimony of prosecution witnesses.

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The postmortem report would indicate the cause of death as referred to supra . Therefore, from the totality of the material evidence placed on record, this

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Court has no hesitation whatsoever in upholding the finding of the guilt recorded by the learned Trial Judge insofar as the appellant is concerned for causing homicidal death of his wife Smt. Parameshwari.

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Learned Trial Judge has bestowed his best attention to the totality of the circumstances and noted that the incident has occurred at the spur of the moment traceable under Section 304 Part II of the IPC having regard to the homicidal death of Parameshwari.

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Therefore, learned Trial Judge convicted the accused for the offence under Section 304 Part II of the IPC.

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No doubt Sri. Channappa Erappa, learned High Court Government Pleader contended that use of MO-1 and MO-2 in the incident and injuries that has been found on the body of Parameshwari as per the postmortem report marked at Ex.P9, the accused should have been convicted for the offence under Section 304 Part I, instead of 304 Part II of the IPC.

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It is settled principles of law and requires no emphasis that in appeal filed by the accused, there cannot be enhancement of punishment nor accused can be convicted for a higher offence than he has been convicted.

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Thus, in the absence of any appeal filed by the prosecution challenging the acquittal of the accused for the offence under Section 302 of IPC, this Court is of the considered opinion that the guilt of the accused recorded for the offence under Section 304 Part II of the IPC needs to be maintained and requires no interference in this appeal. Minor contradictions elicited in the form of Ex.D1 to D6 did not cause any serious dent to the case of the prosecution nor sufficient enough to hold that the opinion recorded by the learned Trial Judge for convicting the accused for the offence under Section 304 Part II of the IPC.

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The argument put forth on behalf of the

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appellant that at the most, the accused must be convicted for the offence under Section 324 of the IPC instead of 304

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Part II of the IPC, cannot also be countenanced on record inasmuch as, from the time of incident and time of death of deceased, is not so large, and death is as a result of injuries sustained by deceased in the incident as per postmortem report.

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In view of the foregoing discussion, point No.1 and point No.2 are answered in the affirmative and negative, respectively.

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REG. POINT NO.3: Since the learned Trial Judge

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has granted has granted rigorous imprisonment for a period of 3 years and ordered to pay fine of Rs.50,000/-, in the absence of any other mitigating circumstances placed on record, this Court does not find any reasons, whatsoever, much less good reasons to reduce the punishment or the fine amount. Accordingly, point No.3 is answered in the negative .

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REG. POINT NO.4: In view of the findings of

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this Court on point Nos.1 to 3 as above, following:

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ORDER

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i) The appeal grounds are meritless and accordingly, the criminal appeal is dismissed ;

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ii) The accused who had the benefit of suspension of sentence is directed to surrender before the Trial Judge on or before 10.03.2025, for serving the remaining part of the sentence, failing which the Trial Judge shall take necessary steps to secure his presence and send him to prison.

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Office is directed to return the Trial Court records

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with a copy of this judgment, forthwith.

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Ordered accordingly.

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Sd/(V SRISHANANDA) JUDGE

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RD

Mr. Murthy @ Sundara Murthy v. the State of Karnataka

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Mr. Murthy @ Sundara Murthy v. the State of Karnataka

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