Sridhara M Vs the State

SRIDHARA M. S/O. LATE MARIYAPPA AGED ABOUT 29 YEARS LABOURER BAGGALU, RANGAVVANAHALLY VILLAGE TURUVANURU HOBLI CHITRADURGA TALUK AND DISTRICT-610 001.

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…APPELLANT

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(BY SRI SUBHAM ANAND MISHRA, ADVOCATE, FOR SRI KAPIL DIXIT)

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AND:

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Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka

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THE STATE BY THURUVANUR POLICE CHITRADURGA DISTRICT REPRESENTED BY STATE PUBLIC PROSECUTOR BENGALURU-560 001.

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…RESPONDENT

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(BY SMT. PUSHPALATHA B., ADDITIONAL S.P.P.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 9-7-2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, IN SESSIONS CASE NO.56 OF 2018, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 498A OF IPC.

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THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard Sri Subham Anand Mishra, learned counsel for Sri Kapil Dixit, learned counsel for the appellant-accused, and Smt. Pushpalatha B., learned Additional State Public Prosecutor for the respondent-State.

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The factual matrix of the case of the prosecution is that the Accused-Sridhara married Smt. Sakamma (hereinafter referred to as 'deceased') about five years back. While leading marital life at Baggalu Rangavvanahalli Village, Chitradurga, the accused used to give physical and mental harassment to the deceased by suspecting her fidelity and practiced cruelty. On 27.6.2018 at about 2.30 a.m., while the deceased was sleeping, the accused with an intention to commit her murder, smacked a stone on her head, as a result, she suffered grievous bleeding injuries and died at the spot.

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Based on the complaint, a case was registered against the accused for the offences punishable under Sections 302 and 498A of the Indian Penal Code, 1860 (for short, 'IPC') and seized bloodstained shirt of the accused. The Investigating Officer recorded the statements of the witnesses, collected the FSL report and Post-Mortem examination report, and filed the charge-sheet against the accused. Since the accused was in judicial custody, he was secured and charge was framed. The accused did not plead guilty and claims trial. Hence, the prosecution relies on the evidence of PW1 to PW22, got marked Exs.P1 to P48 and MOs.1 to 11.

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The trial Court having considered both oral and documentary evidence comes to the conclusion that accused committed the murder of his wife and convicted him for the offences punishable under Sections 302 and 498A of IPC. He was sentenced to undergo imprisonment for life with fine of Rs.25,000/- for the offence punishable under Section 302 of IPC and to undergo simple imprisonment for a period of one year with fine of Rs.5,000/- for the offence punishable under

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Section 498A of IPC. The sentences were ordered to run concurrently.

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Learned counsel for the appellant-accused vehemently contended that the evidence of PW1 is inconsistent. The case of the prosecution is that PW6, son of the accused and the deceased, went to the house of PW1, aunt, and informed about the incident, but PW6 is aged about three and half-a-year old and in the midnight, the child going and waking up the aunt cannot be believed. He would submit that there is no complaint prior to the incident with regard to harassment and also the Police advising the accused and the deceased not to quarrel with each other. The evidence of PW6 is that he was tutored by his aunt. He would submit that the age of the bloodstains was not determined. Hence, on all these grounds, he prayed to allow the appeal.

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Per contra , the learned Additional State Public Prosecutor for the respondent-State would submit that PW8Mahanthesha, cousin of the deceased, immediately went to the house of the accused and the deceased in odd hour and saw the dead body of the deceased and PW7-Shanthamma, mother

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of the deceased, having received the confirmation from PW8,

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she also visited the spot and found the dead body of her daughter. The evidence of PW1 to PW22 are consistent. She would submit that the evidence of PWs.3 and 4, recovery witnesses, with regard to the recovery of MO8-shirt, are consistent and they categorically deposed that bloodstained shirt was seized at the instance of the accused. PWs.9 and 10 are the circumstantial witnesses and they speak about conducting of panchayat prior to the incident. She would submit that the evidence of PW5 is very clear with regard to the FSL is concerned that the cloth of the accused stained with blood, that too, 'O' group human blood. However, no explanation is offered by the accused while recording his statement under Section 313 of the Code of Criminal Procedure, 1973, (for short, 'Cr.P.C.') before the trial Court. She would submit that the statement of PW6, son of the deceased and the accused, was also recorded immediately before the trial Court and he deposes that the accused only committed the murder and even when he was examined before

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the Court, he reiterated the same. PW16-Doctor also stated that he found ten external injuries and the medical evidence

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also supports the case of the prosecution that the cause of

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death is on account of dropping of stone on the head. She would submit that in the evidence of the prosecution witnesses, there are no contradictions and inconsistencies, particularly, in

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the evidence of PWs.1, 6, 7, 8, 9 and 10. The evidence of PW6, who is an eyewitness to the incident, and particularly, PWs.11 and 14 speak about they seeing the accused, after committing the murder and running away from the spot. The evidence of PWs.11 and 14 are consistent with regard to the very conduct of the accused and further, when PW14 tried to interact with the accused, the accused did not reply. Further, the accused has not offered any explanation under Section 106 of the Evidence Act, 1872, when the incident has taken place in his house around 02.30 a.m. Therefore, all these material clearly discloses that the accused committed the murder of his wife. Hence, she submits that the trial Court has not committed any error in convicting the accused and prayed to dismiss the appeal.

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Having heard the learned counsel for the parties, we have given our anxious consideration to the evidence available

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on record, particularly, PWs.1 to 22. None of the witnesses have turned hostile. Having re-appreciated the evidence, the point that would arise for consideration of this Court is:

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"Whether the judgment and order of conviction and sentence passed by the trial Court requires interference at the hands of this Court?"

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PW1 is the sister of the deceased. She deposes before the Court that PW6, aged three years and six months, son of the accused and the deceased, came to her house with weeping and on enquiry, he revealed that his father (accused) committed the murder of his mother (deceased). It is also her evidence that on the very day at 08.00 p.m., there was quarrel in the house of the accused with the deceased. Therefore, her husband-Manjunatha, CW11-Yallappa and PW7-Shantamma, mother of the deceased, and herself went and advised to lead a good marital life. On advice, the accused replied that he is going to take care of the deceased well. It is also her evidence that the house of the accused is also located nearby her house. She reiterated that PW6 came to her house and informed about the incident and hence, she immediately informed her husband. Since her husband did not respond, she informed CW11, PWs.7

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and 8. PW8-Mahanthesha rushed to the house of the accused

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and found dead body of the deceased and accordingly, he informed her and she immediately rushed to the spot and found injuries on the deceased. Hence, she called others and they also witnessed the incident. This witness was subjected to cross-examination with regard to the location is concerned and categorically admits that before coming of PW6 to her house, she did not hear any sound. However, she admits that she did not witness the murder, but came to know about the incident through PW6.

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The other witness is PW2. It is his evidence that he

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knows the deceased and the accused and they were residing as husband and wife; both of them were cordial for some time and in the said wedlock, they have two children. On receiving the information about the incident, he visited the spot and found the dead body of the deceased with injuries. The Police conducted mahazar and seized the articles which were found on the spot, i.e. MOs. 1 to 7, and he also identified his signature. It is his evidence that the accused committed the murder of the deceased. It is his further evidence that the deceased was

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suspecting the fidelity of the deceased and the Villagers also advised the deceased in that regard, however, in spite of advice, he did not change his attitude. In the crossexamination, he admits that he did not mention before the Police that he went and advised the accused on 26.06.2018 at 08.00 p.m. and also he did not give statement that the accused was harassing the deceased, after two years of their marriage. However, he admits that he did not witness the incident. He further admits that the house of PW1 is located by the side of his house and except this, nothing is elicited from this witness.

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PW3 is a recovery witness for seizure of MO8-shirt of the accused. He categorically deposes before the Court that the Police drawn the mahazar and the accused only produced his bloodstained shirt from the bush. He identified his signature on the mahazar and he also identified the accused and the shirt before the Court. In the cross-examination, he has admitted that the accused stopped the vehicle, proceeded towards bush and showed the shirt to the Panchas and to the Police. Except this, nothing is elicited from this witness.

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PW4 is another recovery witness for seizure of MO8-

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shirt. He also reiterates the evidence of PW3. In the crossexamination, he admits that PW3, himself and the accused proceeded in one jeep and the Inspector of Police came in another vehicle. Except this, nothing is elicited from this witness.

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The other witness is PW5, Senior Scientific Officer at RFSL, Davanagere. He deposed that he examined the bloodstained articles, i.e. MOs.1 to 9. He has opined that items Nos.1 to 6, 8 and 9 were stained with 'O' group human blood. Further, he has stated that he has not found human blood in item No.7. He issued the report as per Ex.P15. In the crossexamination, he admits that he has not disclosed the variations and observations occurred at the time of test in Ex.P15. Except this, nothing is elicited from this witness.

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The other witness is PW6, son of the accused and the deceased, aged three years and six months. He is an eyewitness to the incident. In his evidence, he says that his father (accused) only dropped the stone on the face and head of his mother (deceased). He went and informed the same to

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PW1, his aunt. Further, while deposing before the Court, he voluntarily addressed his father "why did you kill my mother?" In the cross-examination, he reiterates that the accused only committed the murder of his mother, when his mother was sleeping along with his brother and himself. When suggestion was made that he was not aware, who assaulted the mother, but this witness reiterates that his father only assaulted his mother. Further, this witness has stated that PW1 tutored him to say that the accused has committed the murder of his mother. This witness was re-examined and he says that he only went and called PW1 and informed PW1 that the accused only dropped the stone on the head of the deceased while his mother, brother and himself were sleeping. In the crossexamination, once again, suggestion was made that he did not witness the incident and this witness, once again, reiterates that he witnessed the incident. Once again, suggestion was made that PWs.1 and 7 tutored him, but he denied the same.

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PW7 is the mother of the deceased. She reiterates the evidence of PWs.1 and 6. In the cross-examination, she admits that it was a love marriage between the accused and the

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deceased and the houses of PWs.1 and 2 are next to the house

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of the accused. She further admitted that they were not interested to perform the marriage of her daughter with the accused, but they also did not want her daughter to elope with the accused. It is also her evidence that for two years, the accused and the deceased were cordial and thereafter, the accused started harassing the deceased. She further admitted that she has not witnessed the incident.

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PW8-Mahanthesh, cousin of the deceased, who went and found the dead body of the deceased at around 02.30 a.m. to 03.00 a.m. when PW1 narrated the incident to him. He also says that PW1 informed that PW6-Dhanush came with weeping and informed that the accused assaulted the deceased with stone. Immediately, he rushed to the spot and found the dead body and informed the same to PW1, CW11 and PW7. In the cross-examination of this witness, nothing is elicited, except he visiting the spot and finding the deceased dead.

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PWs.9 and 10 are circumstantial witnesses. They have deposed that the accused and the deceased were cordial for two years and later, the accused started harassing the

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deceased by suspecting her fidelity. Hence, on this behalf, they advised the accused. In the cross-examination of these witnesses, nothing is elicited to disbelieve their evidence.

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PWs.11 and 14 are witnesses to last seen theory. They have deposed that while sleeping in front of their respective houses, during night hours, they heard barking of dogs between 2.30 and 3.00 a.m., at that time, the accused came from his house holding cover and left the place in a hurry. Later at about 4.00 a.m., they heard screaming of PWs.1, 7, 8 and they rushed to the spot, and saw the dead body of the deceased. In the cross-examination of PW11, nothing is elicited. However, in the cross-examination of PW14, he has admitted that he tried to interact with the accused when he came out of the house, but the accused went away in a hurry and when the suggestion was made that it was dark night, this witness says that there was a street light and he is not a relative of the deceased.

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PW12 is a witness to seizure of clothes of the deceased at the spot as per MOs.9 to 11, i.e. nighty, petticoat and panty, respectively.

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PW13 is a circumstantial witness. He deposed that PW1 requested him to draft the complaint and accordingly, he drafted the complaint, read over the averments to PW1 and on the very next day early morning, PW1 lodged the complaint as per Ex.P1.

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PW15 is a Taluk Executive Magistrate, who secured

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the Pancha witnesses and conducted inquest mahazar-Ex.P7.

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PW16 is the Medical Officer at District Hospital, Chitradurga, who conducted the Post-Mortem examination and found ten external injuries all over the dead body and also given the opinion that the cause of death is due to head injury sustained with MO1-stone. On examination of MO1, he opined that if a person assault with object like MO1, the injuries mentioned in the Post-Mortem examination report and corresponding to the internal injuries could be possible. In the cross-examination, he has stated that he is the only person, who is conducting the Post-Mortem examination in the District Hospital.

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PW17 is a Medical Officer, District Hospital, Chitradurga, who examined the accused. On examination of the accused, she has stated that the accused was in a fit condition to give statement.

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PW18 is the Assistant Engineer, PWD, Chitradurga, who prepared the sketch as per Ex.P26.

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PW19, Secretary of Grama Panchayat, who issued endorsement as per Ex.P29 regarding the existence of house at Baggalu Rangavvanahally Village, in which the accused and the deceased were residing.

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PW20 is the Section Officer of BESCOM, who stated regarding supply of electricity in the area of Baggalu Rangavvanahally Village on the date of incident as per Exs.P31 and 32.

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PW21 is the Inspector of Police, who registered the complaint-Ex.P1 lodged by PW1. As per the instructions of PW22-Circle Inspector of Police, he had been to Kunabevu along with CW13-Jyothishwara in search of the accused. They caught hold the accused and produced him before PW22. He

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conducted partial investigation and handed over the further investigation to PW22.

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PW22-Investigating Officer, who conducted further investigation in the matter. He deposes regarding drawing of spot and seizure mahazar as per Ex.P4 and recovery of MOs.1 to 7, regarding recording of the statement of PW6-Dhanush, minor boy, in the presence of his grandmother, subjecting the dead body for inquest, recording of voluntary statement of the accused and seizure of MO8-shirt in the presence of PWs.3 and 4 and forwarded the seized articles to the FSL and obtained the Post-Mortem examination report and after investigation, he filed the charge-sheet. In the cross-examination, nothing is elicited to disbelieve the case of the prosecution.

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Having reassessed the material available on record, PW1, sister of the deceased, lodged the complaint as per Ex.P1. In the complaint, PW1 has categorically reiterated that PW6, son of the accused and the deceased, came and informed about the incident. The case was registered. Spot and recovery mahazar was conducted in terms of Ex.P4. The voluntary statement of the accused was recorded, wherein he admitted

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that if he is taken to the spot, he will produce the shirt which is thrown in the bush. In the presence of PWs.3 and 4, the accused produced MO8-shirt and the same is recovered under Ex.P8.

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Having taken note of oral and documentary evidence available on record, particularly, the evidence of PW1 is very clear that PW6 came in odd hour having witnessed the incident of dropping of stone on the head of the deceased by the accused. She informed the same to PW8-Mahanthesh, who in turn, went to the spot and confirmed that the deceased is dead. Immediately, other witnesses rushed to the spot and noticed

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the dead body of the deceased. PWs.11 and 14, last seen witnesses, were examined. They categorically depose that since it was summer season, they were sleeping in front of their respective houses. When the dogs were barking, they woke up and noticed the accused. The accused was holding cover and

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left the place in a hurry. The evidence of PWs.11 and 14 are consistent with each other. Further, PW14 tried to interact with the accused, however, the accused went in a hurry and did not reveal anything to him.

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The incident has taken place in the house of the accused and the deceased which is not in dispute, that too, in odd hour between 02.30 and 03.00 a.m. and other witnesses also rushed to the spot and found the dead body of the deceased.

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PWs.9 and 10 are the circumstantial witnesses. They categorically depose that they advised the accused to mend his behaviour since he used to suspect the fidelity of the deceased. It is also important to note that all the witnesses depose that the relationship of the accused and the deceased was cordial for two years and even the evidence of PW7, mother of the deceased, clearly goes to show that it was the love marriage between the accused and the deceased.

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Though the learned counsel for the appellate would contend that the evidence of PW1 is inconsistent, but we do not find any inconsistency in the evidence of PW1. It is the contention of the learned counsel for the appellant that there was no prior complaint regarding harassment or cruelty meted by the accused. PWs.1, 7, 9 and 10 have clearly deposed

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regarding the accused suspecting the fidelity of the deceased and in spite of advice, he did not mend his behaviour. Further, the incident has taken place inside the house of the accused and the deceased, that too, odd hour between 02.30 and 03.00 a.m. However, the accused has not offered any explanation in his statement recorded under Section 313 of Cr.P.C. and with regard to the bloodstains found on MO8-shirt. Only contention of the learned counsel for the appellant that the age of the bloodstains was not determined. However, the same is immaterial, when the cloth of the accused was seized at his instance only and the same is supported by the evidence of PWs.3 and 4. The evidence of PWs.3 and 4 are consistent with regard to recovery of MO8-shirt that the accused himself took the Panchas and the Police to the place, where he had thrown the shirt. The FSL report is also very clear that the shirt of the accused stained with 'O' group human blood. The PostMortem examination report issued by PW16-Doctor also goes to show that there were ten external injuries on the dead body of the deceased and opined that the cause of death is due to head injuries sustained.

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At the outset, we must also note the perspective from

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which the evidence of a child witness is to be considered. We have considered the evidence of PW6 with other witnesses. PW6, who at the time of occurrence of the incident was about three years and six months, is the only solitary eyewitness. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness in an odd hour. The evidence of the child witness cannot be rejected per se , but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the evidence and its reliability, base conviction by accepting the evidence of the child witness. The evidence of PW6 cannot be discarded only on the ground of he being of tender age. The fact of PW6, being a child witness, would require the Court to scrutinise his evidence with care and caution. If he is shown to have stood the test of crossexamination and there is no infirmity in his evidence, the prosecution can rightly claim a conviction based upon his testimony alone. Corroboration of the testimony of a child witness is not a rule, but a measure of caution and prudence.

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Some discrepancies in the evidence of a child witness cannot be

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made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the Courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option, but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. If the evidence of the child witness is credible and not tutored, it can be relied on without any hesitation and the law is well settled with regard to the evidence of the child witness is concerned that the testimony of a child witness cannot be rejected, unless found reliable, untutored and capable of understanding and responding rationally, as held by the Hon'ble Supreme Court in the case of Gul Singh @ Guliya v. State of Madhya Pradesh reported in 2015 (88) ACC 358 (SC) .

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No doubt, in the cross-examination of PW6, an answer was elicited that PW1 tutored PW6 to state that her father, i.e. the accused, only committed the murder of his mother, i.e. the deceased. However, the same cannot takeaway the case of the prosecution since the evidence of PW6 is very clear that his father committed murder of his mother and even before the Court also, he voluntary questioned his father as to why he killed his mother. Further, in his further crossexamination, he has denied the suggestion that PWs.1 and 7 tutored him. The evidence of eyewitness and the evidence of circumstantial witnesses point outs the guilt against the accused. When such material available on record, we do not find any errors on the part of the trial Court in convicting the accused for the offences punishable under Sections 302 and 498A of IPC. In view of the discussions made hereinabove, we answered the point accordingly and pass the following

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