Karnataka High Court
Viji @ Vijayalakshmi @ Jyothi vs State Of Karnataka on 13 January, 2022
Bench: B.Veerappa, M G Uma
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE Mrs. JUSTICE M.G. UMA
CRIMINAL APPEAL No.1248/2017
BETWEEN:
VIJI @ VIJAYALAKSHMI @ JYOTHI
AGED ABOUT 27 YEARS,
W/O KEMPEGOWDA,
R/AT KARIHUCHANAKOPPALU,
KOPPA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT,
NOW RESIDING AT:
C/O VIMALAMMA,
3RD CROSS,
SAHUKAR CHANNEGOWDA
BADAVANE,
GUTHALU COLONY,
MANDYA TALUK,
MANDYA DISTRICT.
(NOW IN JUDICIAL CUSTODY)
...APPELLANT
(BY SRI SYED AKBAR PASHA, ADVOCATE)
2
AND:
STATE OF KARNATAKA
BY KOPPA POLICE
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560009.
...RESPONDENT
(BY SRI K. NAGESHWARAPPA, HIGH COURT GOVERNMENT
PLEADER)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED 27.3.2015 PASSED
BY THE P.O., FAST TRACK COURT, MANDYA IN S.C.NO.97/2013 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 302,379,404 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
3
JUDGMENT
This is an unfortunate case where the daughter has murdered
her own mother. The present Criminal Appeal is filed by the
accused against the judgment of conviction and order of sentence
dated 27.03.2015 passed in S.C.No.97/2013 on the file of the
Presiding Officer, Fast Track Court, Mandya, sentencing the accused
to undergo rigorous imprisonment for life for the offence punishable
under Section 302 of the Indian Penal Code and to pay fine of
`20,000/-; to undergo rigorous imprisonment for a period of two
years for the offence punishable under Section 379 of the Indian
penal Code and to pay fine of `10,000/-, in default, to undergo
further rigorous imprisonment for a period of six months for the
offence punishable under Section 379 of the Indian Penal Code, and
to undergo rigorous imprisonment for a period of two years and to
pay fine of `10,000/-, in default to undergo rigorous imprisonment
for a period of six months for the offence punishable under Section
404 of the Indian Penal Code.
2. The case of the prosecution is that the accused is the
daughter of deceased Sakamma and C.W.1. Deceased Sakamma
was having Insurance Policy with PACL Company Limited and the
accused was the nominee to the said policy, which matured on
03.08.2012 and deceased Sakamma was supposed to receive
`10,910/- from the Insurance Company. Accordingly, the Policy
was submitted to the Insurance Company and Sakamma had
received the amount. On 31.10.2012 at 2.00 pm, when Sakamma
was sitting in front of the house of C.W.2, the accused came there
and called and forced her to give the insurance amount. When
Sakamma refused to give the money, accused picked up quarrel
and assaulted on the cheek of Sakamma forcibly, due to which,
Sakamma sustained grievous hurt and died at the spot. The
accused took all the ornaments worth `22,000/- found on the body
of Sakamma and left the place she pledged the said ornaments
through C.W.4 and used the said money for her own use and
thereby, committed offences punishable under Sections 302, 379,
404 of the Indian Penal Code.
3. After receipt of the Charge Sheet from the Investigating
Officer, the Magistrate took cognizance of the offences and
registered the criminal case in C.C.No.226/2013. Since the offences
were triable by the Court of Sessions, the matter was committed to
the Court of Sessions. After committal of the case, the learned
Sessions Judge registered Sessions case in S.C.No.97/2013 against
the accused. After hearing, the learned Sessions Judge framed the
Charge, read over to the accused in the language known to her,
who pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution in all examined 10
witnesses as P.Ws.1 to 10, got marked the documents Exs.P.1 to
P.32 and the material objects M.Os.1 to 10. After completion of the
evidence of prosecution witnesses, statement of the accused as
contemplated under Section 313 of the Code of Criminal Procedure
was recorded. The accused denied all the incriminating evidence
made against her by the prosecution witnesses and filed statement
under the provisions of Section 313(5) of the Code of Criminal
Procedure and stated that the children of the second wife of her
father were not cordial with her as she was made nominee to the
insurance policy by her deceased mother. Therefore, they created
false evidence and have falsely implicated her in order to deprive
her of the policy amount and further stated that her deceased
mother had illicit relationship with P.W.2-Manchegowda which she
used to oppose. P.W.2 and the deceased were misusing the
innocence of her father. Therefore, P.W.1 and P.W.2 filed false
complaint.
5. Based on the aforesaid materials, the learned Sessions Judge
framed two points for consideration. Considering both oral and
documentary evidence on record, the learned Sessions Judge
answered both the points in the affirmative holding that the
prosecution proved beyond reasonable doubt that the accused who
is the daughter of the deceased Sakamma was the nominee to the
insurance policy taken by Sakamma and in order to get the
maturity amount of the said policy on 31.10.2012, accused came to
the house of deceased Sakamma at 2.00 pm, picked up quarrel
with her for the said policy amount and when Sakamma refused to
pay the policy amount, assaulted Sakamma with her hands on her
cheek due to which, Sakamma dashed to the hard surface and
sustained grievous injuries and died on the spot and thereby,
committed an offence punishable under Section 302 of the Indian
Penal Code. The prosecution further proved that after the death of
Sakamma, accused removed all the gold ornaments found on the
dead body of Sakamma, took them and left the place. She pledged
the same and utilized the amount for herself and thereby
committed an offences punishable under Sections 379 and 404 of
the Indian Penal Code, and accordingly, passed the impugned
judgment of conviction and order of sentence. Hence, the present
Criminal Appeal is filed by the Appellant/accused.
6. We have heard the learned counsel for the parties.
7. Sri Syed Akbar Pasha, learned counsel for the appellant/
accused contended with vehemence that the impugned judgment of
conviction and order of sentence passed by the learned Sessions
Judge is without any basis and contrary to the material on record
and is liable to be set-aside. He further contended that there is no
motive for the alleged offence. The motive is not established by the
prosecution. As per Ex.P.23-post mortem report issued by the
Doctor, there are no external injuries found on the dead body. The
doctor who conducted the post mortem examination has not been
examined, but his opinion is marked as Ex.P.22, which is
impermissible. M.Os.5 to 10 jewels wore by the deceased were not
recovered at the instance of the accused. But the same were seized
from the custody of P.W.4 in the police station.
8. He further contended that, absolutely there is no material
against the accused to implicate her in the homicidal death of the
deceased. The prosecution proceeded to convict the accused mainly
on the basis of the evidence of P.W.1- father of the accused. P.W.2
is the neighbour who has seen the dead body for the first time at
8.00 pm on 31.12.2008, whereas, the incident had occurred at 2.00
pm. Absolutely there is no credible evidence. Still the learned
Sessions Judge convicted the accused and the same cannot be
sustained. He further contended that, except P.Ws.1, 2 and the
Investigating Officer, all other witnesses including P.W.4 have
turned hostile. Absolutely there is no material to implicate the
accused for the offence. He further contended that the prosecution
failed to prove the case beyond reasonable doubt. The
appellant/accused is in judicial custody for more than ten years.
Therefore, learned counsel sought to allow the Criminal Appeal.
9. Per contra, Sri. K.Nageshwarappa, learned High Court
Government Pleader while justifying the impugned judgment of
conviction and order of sentence passed by the trial Court,
contended that the evidence of PWs.1, 2 and the opinion of the
Doctor at Ex.P24 clearly depicts the motive for the murder. He
further contended that on the date of the unfortunate incident, the
accused was with her mother. MOs.5 to 10-jewels worn by the
deceased-Sakamma were seized from PW.4 in the police station
who is the paramour of the accused. Though PW.4 turned hostile,
his evidence can be relied upon for recovery of gold articles-MO-5
to MO-10. He further contended that PW.7-Goldsmith and panch
witness to Ex.P19 i.e., Mahazar, supported the case of the
prosecution. He would further contend that the accused has taken
a specific defence in the statement filed by her under the provisions
of Section 313 of Cr.P.C., where she has gone to an extent of
making false allegations against her own mother that she had illicit
relationship with PW.2. Thereby, the conduct of the accused clearly
depicts that she is involved in the homicidal death of the deceased
i.e., her own mother. He further contended that it is also not in
dispute that the deceased-Sakamma had taken Insurance Policy
with PACL Company Limited for Rs.10,910/-, the same was spoken
to by PW.5. Thereby, the circumstances narrated by the learned
Sessions Judge clearly depicts the involvement of the accused in
the homicidal death of the deceased. Therefore, he sought to
dismiss the appeal.
10. In view of the rival contentions urged by learned counsel for
the parties, the only point that would arise for our consideration in
this appeal is:
"Whether the accused has made out a case to
interfere with the impugned judgment of conviction and
order of sentence for the offences punishable under
Sections 302, 379 and 404 of IPC and whether she has
made out a case to modify the impugned conviction in
the facts and circumstances of the case?"
11. We have given our anxious consideration to the arguments
advanced by the learned counsel for the parties and perused the
entire materials on record, including the original records carefully.
12. It is undisputed fact that the complaint filed by PW.1 who is
the father of the accused and husband of the deceased, clearly
depicts that the accused was married to one Kempegowda, who left
her within one year from her marriage. In Ex.P1-complaint, PW.1
stated that on 31.10.2012 at about 7.00 a.m., when he went out of
the house towards Madduru, his wife deceased-Sakamma was all
alone in the house. On that day, at about 10.00 a.m., the accused
made a call to his mobile and asked him where was he and he
informed that he was in Madduru. After finishing the work in
Madduru, he went to Mandya and from there he went to his village.
When he was on the way back towards his house, the people were
talking about his wife's death, which had occurred inside his house.
He further stated that at about 10.00 p.m., he went near his house
and witnessed public gathering in front of the house. He entered
the house and saw the dead body of his wife, which was in supine
position towards southern side. After enquiry, it came to his notice
that on 31.10.2012 at about 2.00 p.m., his wife was sitting near
the house of PW.2 and at that time, the accused came there and
took the deceased with her to their house and at about 2.30 p.m.,
PW.2 came near PW.1's house and saw the accused and deceased
talking to each other inside the house. It is further stated that at
about 8.00 p.m., as the door of the house of deceased was open
and light was on and after hearing the bleat of the goats and
shepherds, PW.2 went inside the house and he came to know that
the deceased was dead and he informed the same to other
neighbors. Further, it is stated that the gold ornaments worn by the
deceased and cash of Rs.3,000/- kept in kitchen found missing.
After noticing all the above circumstances, PW.1 specifically stated
that it was only the accused who caused the death of his wife and
requested to take action in accordance with law.
13. Based on the aforesaid complaint-Ex.P1, the jurisdictional
police registered the case in Crime No.149/2012 under the
provisions of Section 302 of IPC. After investigation, the
jurisdictional police filed the charge sheet against the accused.
14. This Court being the Appellate Court, in order to re-appreciate
the entire materials on record, it is relevant to consider the
evidence of the prosecution witnesses and the documents relied
upon.
(i) PW.1-Ningaiah-the complainant and husband
of the deceased, father of the accused,
reiterating the complaint made, has stated
about the involvement of the accused in the
homicidal death of his wife. He identified the
photos of the dead body at Exs.P2 to P14,
photo copies of his home and kitchen at Ex.P15
and Ex.P16. He identified the clothes of
deceased-Sakamma at MO.1 to MO.3 and
MO.5 to MO.10, jewels worn by the deceased.
Nothing has been elicited in the cross-
examination to disbelieve his version about the
involvement of his daughter in the homicidal
death of his wife.
(ii) PW.2-Manchegowda alias Piyanna, who is the
neighbor of PW.1, has deposed that on the
date of the incident, at about 2.00 p.m., he
saw the accused in the house of the deceased
and at that time, when he was on the way to
his work, the accused was quarreling with the
deceased. By seeing that, he stopped himself
there, noticing the same, the accused asked
him to go away, then he proceeded towards
his work. Witness further stated that when he
returned to his house at about 7.30 p.m., the
door of the house of deceased was opened,
light was not on, his wife informed him that in
the house of the deceased, shepherds and
goats were crying. When he went to the house
of the deceased, he saw that the deceased-
Sakamma was lying in the kitchen and came to
know that deceased-Sakamma was not alive.
Thereafter, he called other neighbors to the
scene of occurrence. This witness supported
the case of the prosecution. Nothing has been
elicited in the cross-examination to disbelieve
his version about the involvement of accused
in the homicidal death of deceased-Sakamma.
(iii) PW.3-Vimala is the owner of the house,
wherein, the accused was residing with PW.4-
Arunkumar. Witness stated that the accused
and PW.4 were residing in her house on a
monthly rent of Rs.1,500/- and also paid
Rs.5,000/- as advance but did not paid the
rents subsequently. Witness further stated that
about 4-5 days back, one day in the morning,
accused and PW.4 left house and came back at
about 7.00 p.m. On enquiry, this witness has
not given proper explanation and turned
hostile.
(iv) PW.4-Arunkumar alias Kumar was also turned
hostile but the prosecution has examined him
as witness to establish the recovery of MO.5 to
MO.10, the gold article said to be worn by the
deceased. This witness has not supported the
case of the prosecution.
(v) PW.5-Veeranna, the person who has obtained
insurance policy bond in the name of
deceased-Sakamma has deposed that he was
working as an Agent of PACL Company Limited
and deceased-Sakamma has taken the policy
in the year 2007 and used to pay premium of
Rs.1,365/- per annum and the accused was
made as nominee to the said policy, which
came to be matured on 03.08.2012 and
deceased-Sakamma was supposed to receive
Rs.10,910/- from the Insurance Company.
Witness further stated that, about two years
back, he came to know that deceased-
Sakamma is dead. Witness identified the policy
at Exs.P20 and P21. He has not been cross-
examined by the defence counsel and it has
been suggested that he has not given any
statement before the police.
(vi) PW.6-Puttaswamy, who is the witness to the
Inquest Mahazar at Ex.P22, supported the case
of the prosecution.
(vii) PW.7-Mariyachar, the Goldsmith who
verified/examined MO.5 to MO.10 in the police
station, which were seized under Mahazar-
Ex.P19 and has given opinion stating that it is
gold ornaments. Witness further stated that
the Mahazar is signed by Arunkumar and
Gopala as panchas. He supported the case of
the prosecution but nothing has been elicited
contrary to his evidence.
(viii) PW.8-K.N.Rathnamma, sister of the accused
and another daughter of the deceased and
PW.1. During her examination in chief, she has
stated that the accused is her younger sister
and about two years back her mother died.
The prosecution examined this witness as
inquest mahazar. But she has not supported
the case of the prosecution and turned hostile.
(ix) PW.9-N.Muniyappa, the Police Sub-Inspector
registered the case on the basis of complaint
lodged by the complainant as per Ex.P1 and
marked FIR as Ex.P29. This witness supported
the case of the prosecution.
(x) PW.10-Putta Obalareddy.K.O., is the
Investigating Officer who conducted further
investigation and filed charge sheet against the
accused and recorded the statements of the
witnesses and drawn the inquest mahazar and
also seized the jewels and recorded the
statement of the accused. After investigation,
filed the charge sheet and supported the case
of the prosecution.
Based on the aforesaid materials on record, the learned Sessions
Judge proceeded to convict the accused for the offences made out
in the charge sheet.
15. The evidences of PW.1-father of the accused and husband of
the deceased-Sakamma and PW.2-Neighbor of PW.1, clearly depicts
the presence of the accused in the house of the deceased on the
date of unfortunate incident and her involvement in the homicidal
death of the deceased. It is also not in dispute that as stated by
PW.5, the deceased has taken insurance policy and made the
accused as nominee to the said policy, which was matured on
03.08.2012 and deceased-Sakamma was supposed to receive
Rs.10,910/- from the Insurance Company. According to the
prosecution, the accused used to demand the said insurance
amount from deceased and on the date of incident, she had
quarreled with her mother as spoken by PW.2. Further, when the
deceased-Sakamma refused to give the insurance amount to the
accused, she picked up quarrel with her and slapped on the cheek
of the deceased i.e., her own mother. Thereby, the deceased-
Sakamma aged about 60 years fell down and her head was forcibly
dashed against the hard surface and sustained grievous injuries and
died on the spot. As spoken to by the prosecution witnesses
including PW.1, the accused after marrying one Kempegowda, left
him within one year from her marriage and started residing with
her parents for about 6 months and thereafter she left her parental
home and built a relationship with PW.4 and started residing with
him. The unfortunate incident occurred on the unfortunate day was
only due to quarrel between the accused and deceased for the
alleged insurance amount. Thereby, the accused lost control over
herself and slapped her mother with her hands, due to which the
deceased fell down and her head was forcibly dashed against the
hard surface and sustained grievous injuries and died on the spot.
This indicates that the death of the deceased was caused without
intention and the act of the accused was not due to any
premeditation but it happened due to sudden provocation.
16. A careful perusal of the facts and circumstances of the case
clearly depicts that the case falls under Exception I to Section 300
of the Indian Penal Code, which reads as under:
"Section 300.xxx xxx xxx
Exception I: Culpable homicide is not murder if the
offender whilst deprived of self-control by grave and
sudden provocation, causes the death of the person
who gave the provocation or causes the death of any
other person by mistake or accident."
17. A careful perusal of the said provision makes it clear that
Culpable homicide is not murder if the offender whilst deprived of
self-control by grave and sudden provocation, causes the death of
the person who gave the provocation or causes the death of any
other person by mistake or accident. In the present case, the
accused suddenly slapped on the cheek of the deceased, who fell
down and her head was forcibly dashed against the hard surface
and sustained grievous injuries and died on the spot, is nothing but
culpable homicide not amounting to murder. Therefore, the offence
clearly false under Section 304 Part I and not under Section 302 of
IPC.
18. As stated by learned counsel for the appellant/accused, the
materials on record and evidence were not considered by the
learned Sessions Judge while passing the impugned judgment of
conviction and order of sentence. It is also not in dispute that the
prosecution failed to prove the charge in respect of the offences
punishable under Sections 379 and 404 of IPC except she caused
the death in a fit of rage, the prosecution has failed to produce any
material document to prove the offences punishable under Sections
379 and 404 of IPC. Thereby, the learned Sessions Judge is not
justified in convicting the accused in the absence of any material to
prove the said offence made out against the accused in the charge
memo. It is unfortunate that the accused being the daughter of the
deceased and PW.1, though denied the material incriminating
circumstances made out prosecution witnesses in the statement
recorded under Section 313 of Cr.P.C. Very strangely, the accused
has filed the statement under the provisions of Section 313(5) of
Cr.P.C. and taken a defence that her father had two wives and she
is the daughter of the second wife-deceased and there was no
cordial relationship with the other children of first wife of her father.
Thereby, they have falsely implicated her in this case and has also
taken a specific defence that her mother had an illicit relationship
with PW.2-Manchegowda alias Piyanna, which was known to her
and she was opposing the same. She warned both her mother and
PW.2. Therefore, PW.2 and PW.1 together filed the false complaint
against her, which is one of the circumstance to prove that the
accused is involved in the homicidal death of the deceased.
19. Apart from the evidence of PWs.1 and 2, motive for
committing murder is for gain i.e., for the insurance amount. The
accused had denied all the incriminating circumstances, in toto and
has taken a specific defence in the statement recorded under
Section 313 of Cr.P.C. Therefore, burden is on the accused to
discharge the burden. When the prosecution discharged initial
burden, the burden shifts on the accused and the accused has
taken the plea of alibi. Thereby, the accused has to discharged the
same in the view of the provisions of Section 103 of the Evidence
Act. The same has not been proved by adducing evidence
independently or stepping into box. Thereby adverse inference has
to be drawn against the accused. Our view is fortified by the dictum
of the Hon'ble Supreme Court in the case of State of Haryana vs.
Sher Singh and others reported in AIR 1981 SC 1021, wherein, at
paragraph-4, it is held as under:
"4. When an accused pleads alibi, the burden is on
him to prove it under Section 103 of the Evidence Act
which provides:
"103. The burden of proof as to any particular fact lies
on that person who wishes the court to believe in its
existence, unless it is provided by any law that the
proof of that fact shall lie on any particular person."
20. The accused has not offered any explanation for the death of
the deceased and circumstances regarding how she died. In the
absence of any explanation offered by the accused, adverse
inference has to be drawn against the accused under the provisions
of Section 144 Ill. (g) of the Evidence Act as held by the Hon'ble
Supreme Court in the case of Prahlad vs. State of Rajasthan
reported in (2019) 14 SCC 438 at Paragraph-11 it has held as
under:
"11. No explanation is forthcoming from the statement
of the accused under Section 313 CrPC as to when he
parted the company of the victim. Also, no explanation
is there as to what happened after getting the
chocolates for the victim. The silence on the part of
the accused, in such a matter wherein he is expected
to come out with an explanation, leads to an adverse
inference against the accused".
21. As already held above that the accused quarreled with her
mother-deceased seeking the insurance amount, when the
deceased refused to give the said amount to the accused, she
assaulted/slapped on the cheek of the deceased. Thereby, the
deceased fell down and her head was forcibly dashed against the
hard surface and sustained grievous injuries and died on the spot.
Thereby, the act of the accused was not due to any premeditation,
but it happened due to sudden provocation. Thereby, the present
case clearly falls under Exception I to Section 300 of IPC and
attracts punishment under Part I of Section 304 and not under
Section 302 of IPC as stated supra. Without considering the said
aspect, the learned Sessions Judge proceeded to convict the
accused under Section 302 of IPC.
22. It is also not in dispute that as per Ex.P23-the post mortem
report, no external injuries were found on the dead body of the
deceased. The Doctor who conducted the post mortem examination
was not examined, but marked his opinion at Exs.P23 and P24 with
the consent of the counsel for the accused. Therefore, it is a fit
case to modify the impugned judgment of conviction and order of
sentence under the provisions of Section 302 of IPC into the
provisions of Section 304 Part I of IPC.
23. For the reasons stated above, the point raised for
consideration in the present Criminal Appeal has to be answered
partly in the affirmative, holding that the accused has made out a
case to interfere and modify the impugned judgment of conviction
and reduce the sentence.
24. In view of the above, we pass the following:
ORDER
(i) The Criminal Appeal is allowed in part.
(ii) The impugned judgment of conviction and order
of sentence passed by the trial Court sentencing
the appellant-accused to undergo imprisonment
for life and to pay fine of Rs.20,000/- for the
offence punishable under Section 302 of the
Indian Penal Code is hereby modified.
(iii) The appellant is convicted under the provisions
of Section 304 Part I of the Indian Penal Code
and accused is sentenced to undergo
imprisonment for ten years with fine of
Rs.40,000/- (Rupees Forty Thousand only), in
default to undergo imprisonment for further
period of one year.
(iv) The punishment imposed on the accused under
the provisions of Sections 379 and 404 of IPC
are hereby set aside. The accused is acquitted
from the said offences.
(v) The accused is entitled to the benefit of set-off
under the provisions of Section 428 of the Code
of Criminal Procedure, for the period already
undergone by her.
(vi) Out of fine imposed, the amount of Rs.35,000/-
shall be paid to the husband of the deceased-
PW.1 as compensation under the provisions of
Section 357(3) of the Code of Criminal
Procedure. The remaining amount of Rs.5,000/-
shall be paid to the State for the defraying
charges.
Since the main appeal is disposed of on merits, I.A.No.2/2017
for suspension of sentence and bail is disposed off.
Sd/-
JUDGE
Sd/-
JUDGE
KCM/SMJ
