Eshwarappa vs State Of Karnataka
2022 Latest Caselaw 734 Kant

                                 1



    IN THE HIGH COURT OF KARNATAKA AT BENGALURU


         DATED THIS THE 17TH DAY OF JANUARY, 2022


                         PRESENT


           THE HON'BLE MR. JUSTICE B. VEERAPPA


                           AND


             THE HON'BLE Mrs. JUSTICE M.G. UMA


             CRIMINAL APPEAL NO.1682/2017


BETWEEN:

ESHWARAPPA
S/O MUNAKERI THIMMAPPA
AGED ABOUT 58 YEARS
OCC: FARMER
R/O VILLAGE GOWTHAMAPURA
TALUKA SAGAR
DISTRICT SHIVAMOGGA - 28
                                                 ... APPELLANT

(BY SRI: VENKATESH P. DALWAI, ADVOCATE)

AND:

STATE OF KARNATAKA
BY SAGAR RURAL POLICE STATION
REP BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001.
                                            ... RESPONDENT

(BY SRI: VIJAYKUMAR MAJAGE, ADDL. SPP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION    DATED 17.08.2017 AND SENTENCE       DATED
19.08.2017 PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, SHIVAMOGGA SITTING AT SAGAR IN
                                  2



S.C.NO.10007/2017 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC; THE
APPELLANT/ACCUSED      IS    SENTENCED    TO     UNDERGO
IMPRISONMENT FOR LIFE I.E., HE HAS TO REMAIN IN PRISON
UNTIL HIS NATURAL DEATH AND TO PAY FINE OF RS.20,000/- FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND THE
APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.


     THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY THROUGH VIDEO CONFER ENCE       M.G. UMA J.,
DELIVERED THE FOLLOWING:


                        JUDGMENT

The appellant being the accused is before this Court

against the impugned judgment of conviction dated

17.08.2017 and the order of sentence dated 19.08.2017

passed in S.C.No.10007 of 2017 on the file of V Additional

District and Sessions Judge, Shivamogga, sitting at Sagar

(hereinafter referred to as 'the Trial Court' for brevity)

convicting the accused for the offence punishable under

Section 302 of Indian Penal Code (for short 'the IPC') and

sentencing him to undergo imprisonment for life i.e., to

remain in prison until his natural death and to pay a fine of

Rs.20,000/-.

2. Brief facts of the case as contended by the

prosecution is that, on 27.11.2016 at 4.00 p.m., the accused

being the husband of Kollamma picked up quarrel with her as

she had not served meals to him and as he was suspecting

her fidelity, with an intention to cause her death assaulted

with a machete on her forehead, lifted and drowned her in the

small water tank in his bathroom and caused her death by

drowning. Thereby, he has committed the offence punishable

under Section 302 of IPC. PW1 - Dinesh, the brother of the

deceased Kollamma lodged the first information against the

accused as per Ex.P1. After registering the FIR as per Ex.P13,

the investigation was undertaken and the charge sheet was

filed by the Investigating Officer. The committal Court

secured the presence of the accused and committed the

matter to the learned Principal Sessions Judge, who in turn

made over the matter to the V Additional District and Sessions

Judge, Shivamogga, sitting at Sagar, for disposal in

accordance with law.

3. The Trial Court secured the presence of the

accused and framed the charge and read over to the accused

in the language known to him. The accused pleaded not

guilty and claimed to be tried. The prosecution examined

PWs.1 to 17, got marked Exs.P1 to P16 and identified MOs.1

to 9 in support of its contention. The accused has denied all

the incriminating materials available on record in his

statement recorded under Section 313 Cr.P.C. but has not

chosen to lead any evidence in support of his defence. The

Trial Court after taking into consideration all the material on

record, came to the conclusion that the prosecution is

successful in proving the guilt of the accused beyond

reasonable doubt and therefore convicted and sentenced the

accused as stated above. Being aggrieved by the impugned

judgment of conviction and order of sentence passed by the

Trial Court, the accused has preferred this appeal.

4. We have heard the learned counsel for the

parties.

5. Sri.Venkatesh P Dalwai, learned counsel for the

appellant contended that there are no eye witnesses to the

incident. The prosecution has relied on the circumstantial

evidence to prove the guilt of the accused. The prosecution

has not even probablised its contention that the deceased was

assaulted and drowned in the water tank in the house of the

accused. The so-called recovery of material object at the

instance of accused is also doubtful. The scene of occurrence

was tampered before drawing of the spot panchanama. The

Trial Court has not taken into consideration the defence taken

by the accused that he is having gangrene in his both legs

and he is incapable of lifting the deceased and drowning her

in the small water tank. The version of PWs.2, 3 and 6

creates reasonable doubt regarding the manner in which the

incident had occurred. PW6 - Dr.Suma categorically states

that the death was due to drowning. There is absolutely no

material to connect the appellant to the offence in question. It

is most probable that the deceased might have accidentally

fell in the small water tank in the house. She must have

sustained injuries to her forehead while falling and died due to

drowning. The Trial Court has not taken into consideration

this probability and has proceeded to convict the accused

without any basis. Therefore, he prays for allowing the

appeal by setting aside the impugned judgment of conviction

and order of sentence, in the interest of justice.

6. Alternatively, the learned counsel submitted that

the sentence imposed by the Trial Court for the offence

punishable under Section 302 of IPC to undergo imprisonment

for life i.e., to remain in prison until his natural death is

unknown to law. The Trial Court has also not assigned any

reasons for imposing such harsh sentence, when Section 302

of IPC do not prescribe for the same. Therefore, even if the

Court comes to the conclusion that the prosecution is

successful in proving the guilt of the accused for the offence

punishable under Section 302 IPC beyond reasonable doubt,

he is to be sentenced with imprisonment for life simplicitor,

without there being any unreasonable condition to remain in

prison until his death. Accordingly, he prays for allowing the

appeal.

7. Per Contra, Sri.Vijaykumar Majage, learned

Additional State Public Prosecutor opposing the submission

made by the learned counsel for the accused contended that

even though the prosecution relies on the circumstantial

evidence, it is successful in proving the guilt of the accused

beyond reasonable doubt. PWs.1 and 3 - the brothers of the

deceased, PW2 - the sister-in-law of the deceased, PW9 - one

of the villager, PW10 - son of the deceased have consistently

deposed regarding the motive for the accused to cause the

death of the deceased. They have also spoken about the

conduct of the accused immediately after the incident in

informing PW8 over phone that he had consumed poison.

After receiving this information, PWs.1, 2, 3 and 10 have

rushed to the spot. The accused was found in the house, but

he had not consumed poison. When enquired about the

deceased, he gave evasive answers. The deceased was found

drowned in the water tank in the bathroom of the house. The

reason for the unnatural death of the deceased was never

explained by the accused even though he was very much

present in the house in question on the date of the incident.

PW6 - the doctor who conducted postmortem examination

gave his opinion that the death was due to asphyxia as a

result of drowning. These materials unmistakenly points

accusing the finger towards the accused. The accused has not

taken any defence nor probablised his contention that she fell

into the small water tank accidentally or that he is not capable

of taking the deceased to the water tank and drown her, since

he is suffering from gangrene. Therefore, the Trial Court was

right in convicting the accused for the above said offence. The

impugned judgment of conviction and order of sentence do

not suffer from any illegality or perversity and therefore, the

appeal is liable to be dismissed Accordingly, prays for

dismissal of the appeal.

8. In view the rival contentions urged by the learned

counsel for the parties, the only point that arises for our

consideration is:

"Whether the accused has made out any grounds for interference with the impugned judgment of conviction and order of sentence passed by the Trial Court in sentencing the accused to undergo imprisonment of life i.e., he has to remain in prison until his natural death and to pay a fine of Rs.20,000/-?"

9. We have given our thoughtful consideration to the

arguments advanced by the learned counsel for the parties

and perused the entire records including the original records

carefully.

10. This Court being the appellate Court, in order to

re-appreciate the entire material on record, it is relevant to

re-consider the evidence of prosecution witnesses and the

documents relied upon.

(i) PW1 - Dinesh is the brother of the deceased.

Witness has specifically stated that the accused had married the deceased about 30 years back and CW15 is their son. The accused used to

suspect the fidelity of his wife and he used to treat her cruelly. The villagers had advised him several times, but still he was ill-treating her. The deceased was aged 50 years at the time of her death. Witness stated that on 27.11.2016, PW7 - Basavarajappa had informed him over phone that the accused had consumed poison and he informed this fact to PW2 - Chitra and asked her to go to the house of the accused which is about a furlong away from her house. After sometime, PW2 - Chitra informed him over phone that the accused had drowned the deceased in the water tank in the bathroom, as a result of which she died. Immediately, he along with CW16 rushed to the spot. He found grievous hurt on the forehead of the deceased. The blood was oozing from her nose and mouth. He learnt that the accused had assaulted the deceased and drowned her in the water tank. He lodged the first information with the police immediately after coming to know about the fact, as per Ex.P1. Witness also stated that the police have come to the spot and have drawn spot mahazar as per Ex.P2. Exs.P3 to 5 are the photos taken at the spot. He identified MOs.1 to 3 as the objects seized from the spot. During cross examination, nothing has been elicited from this witness to disbelieve his version.

(ii) PW2 - Chitra is the sister-in-law of the deceased.

She also spoke about the conduct of the accused in suspecting the fidelity of the deceased and assaulting her black and blue. Witness stated that at times, the deceased even used to come to her house running as the accused chased her to assault. The accused has not mend his behavior even though the villagers had advised him. Witness stated that on 27.11.2016, PW1 - Dinesh informed her that the accused has consumed poison. Immediately, she along with her brother and sister went to the house of the accused and on enquiry, she came to know that the accused had not consumed poison. When she enquired about the deceased, the accused gave evasive answers. When she went into the house, she found the deceased drowned in the water tank inside the bathroom. She raised hue and cry and villagers have gathered there. The deceased was lifted from the water tank. She had sustained injuries on the forehead and the blood was oozing from the nose and mouth. She learnt that the accused has assaulted the deceased and drowned her in the water tank. But suspecting that the accused has consumed poison, he was shifted to the hospital, but he had not consumed poison. She identified Exs.P3 to 5 as the photos taken at the spot and also MOs.4 to 6 as the clothes which

were on the dead body. Witness identified MO7 as the shirt that was worn by the accused at the time of incident. This witness was also cross examined by the learned counsel for the accused at length. But nothing has been elicited from her to contradict her version. Even though it was suggested to the witness that the accused was not in a position to either walk or run, since he is suffering from gangrene, witness denied the suggestion. Witness also denied that the deceased had accidentally fallen in the water tank and sustained injuries to her forehead and died due to drowning.

(iii) PW3 - Ramesh is also the brother of the deceased who corroborated the version of PWs.1 and 2. His evidence is also not shaken during the cross examination.

(iv) PW4 - Ramesh, PW5 - Rajappa and PW9 -

Rajappa are the villagers who spoke about the ill- treatment meted to the deceased prior to the incident and have stated that they came to know that the accused had caused the death of the deceased. PW9 - Rajappa is also a witness for inquest mahazar - Ex.P8. Witnesses have specifically stated that there was a chopped wound over the forehead of the deceased.

Nothing has been elicited from any of the witnesses during cross examination.

(v) PW6 - Dr.M Suma is the doctor who conducted postmortem examination on the dead body of the deceased and issued report as per Ex.P6. Witness stated that the deceased died due to asphyxia as a result of drowning and that the injuries found on the forehead of the deceased could have been caused with MO8 - Machete. Noting has been elicited in the cross examination to contradict her version.

(vi) PW7 - Basavarajappa and PW8 - Jayaprakash are the relatives of the accused. They have not supported the case of prosecution, except stating that they heard from the accused over phone that he had consumed poison. Immediately, they rushed to the spot and sent him to the hospital. Both the witnesses have stated that deceased Kollamma had died in the house, but pleaded ignorance about the cause of her death. Since the witnesses have not fully supported the case of prosecution, they were treated hostile. They have not supported the case even during the cross examination. PW7 has denied the suggestion that he has given his statement as per Ex.P7.

(vii) PW10 - Kirankumar is the son of the deceased and the accused. Witness stated that he is aged

27 years and he is a B.A. and B.Ed graduate. Witness specifically stated that his mother was not looked after by the accused properly, but he used to assault her every now and then as he was suspecting her fidelity. He used to oust her from the house and used to chase and assault her. Witness stated that when he tried to intervene in the matter, the accused had even assaulted him many a times. Witness stated that on 27.11.2016, he was informed by PW1 that accused had consumed poison. PW2 was asked to visit the house of the accused and accordingly PW2 visited the spot and informed that the accused had assaulted the deceased with a machete and had drowned her in the water tank.

     Immediately, they went to the spot.                  Inquest
     mahazar     was   drawn       by   the    police    and     his
     statement       was      recorded.        During         cross

examination, witness denied the suggestion that the deceased had accidentally fallen in the water tank and died. Witness denied the suggestion that he is deposing falsely.

(viii) PW11 - Prashanth is the witness to the seizure mahazar - Ex.P9. Witness stated that he was called to Sagar Rural Police Station. Accused was present there and he gave his statement stating that he can show the place where he concealed the machete in his house. Accordingly, the

accused led the police and panchas to his house and took out the machete from beneath a cot, which was wrapped with a cloth. The same was seized in his presence as per Ex.P9. Witness identified it as MOs.8 and 9. Witness also identified the accused before the court. During the cross examination, nothing has been elicited from this witness to disbelieve his version.

(ix) PW12 - P R Rangaswami is the Panchayat Development Officer of Gowthampura Gram Panchayat who issued Ex.P10 to show that the house in question stands in the name of Chandrakala, the wife of the accused.

(x) PW13 - Shashidhar is the Assistant Executive Engineer who drawn the spot sketch as per Ex.P11.

(xi) PW14 - B L Janardhana is the Police Inspector who drawn mahazar as per Ex.P2 and seized MOs.1 to 3. The rough sketch is as per Ex.P12 and inquest mahazar is as per Ex.P8 and spoken to about the injuries found on the dead body. He identified photos of the deceased and stated to have recorded the statements of PWs.11 and 12. Even though, witness was subjected to cross examination, noting has been elicited to disbelieve his version.

(xii) PW15 - Suresh is the Sub Inspector of Police who received information and registered FIR as per Ex.P13.

(xiii) PW16 - Dr.Chayakumari is the Deputy Director of RFSL, Davangere. Witness stated that she received 9 material objects for examination and identified those objects as MOs.1 to 9. She stated that she examined all those material objects and subjected them to serological examination. She submitted the report as per Ex.P14.

(xiv) PW17 - Madappa is the Circle Inspector of Police who conducted further investigation, apprehended the accused, recorded his voluntary statement, recovered the machete - MO8 and the towel - MO9 which was used to wrap MO.8. Witness stated that both these objects were recovered at the instance of the accused on the basis of his voluntary statement as per Ex.P15 and the recovery mahazar as per Ex.P9. Exs.P16 to 23 are the photos taken at the spot. He also spoke about the further investigation undertaken by him. Even though he was examined at length, nothing has been elicited to contradict his version.

Based on the aforesaid oral and documentary evidence

on record, the learned Sessions Judge proceeded to convict

and sentence the accused for the offence punishable under

Section 302 of IPC and sentenced him to undergo

imprisonment for life i.e., he has to remain in prison until his

natural death.

11. It is the specific contention of the prosecution that

the accused being the husband of the deceased was

suspecting her fidelity and used to assault and treat her with

cruelty. On 27.11.2016, the accused assaulted the deceased

with machete on her forehead and drowned her in the water

tank in the bathroom and thereby caused her death. There

are no eye witnesses to the incident and the prosecution is

relying on the circumstantial evidence. The relationship

between the accused and deceased as husband and wife is

not in dispute. It is also not disputed that the death of the

deceased was caused due to the injuries sustained by her on

her forehead, and it was due to asphyxia as a result of

drowning. It is also not disputed that the death of the

deceased was occurred in the house of the accused where he

was present.

12. The evidence of PWs.1 and 3 being the brothers of

the deceased and PW2 one of her relative have consistently

supported the case of prosecution regarding the conduct of

the accused in suspecting the fidelity of the deceased and

treating her with cruelty. PW10 is the material witness to the

prosecution, he being the son of the deceased and the

accused. He is aged 27 years and a double graduate. This

witness has specifically stated regarding the conduct of the

accused. Witness states that at times, the accused used to

chase the deceased and assault her. She even used to take

shelter in the house of others persons in the village. Witness

stated that when he tried to intervene in the matter, the

accused used to assault him as well. PWs.4 and 5 being the

villagers have also stated regarding the cruelty meted to the

deceased by the accused and the cause for the death. PW9

another villager also spoke about the motive of the accused to

cause the death of the deceased, as he was suspecting her

fidelity. Even though all these witnesses were cross examined

at length, nothing is elicited to disbelieve the same.

13. It is not the contention of accused that he was

leading a happy life with his wife. It is also not his contention

that he was not present in the house when the incident had

taken place. Admittedly, the accused had not taken the

deceased to the hospital immediately after the incident, but

on the other hand, as specifically stated by PWs.7 and 8 the

accused had informed PW8 that he had consumed poison. As

a result of which, the accused was shifted to the hospital, but

it was found that he had not consumed any poison. But the

dead body of the deceased was found drowned in the water

tank in the house of the accused, for which, the accused has

no explanation.

14. PW6 - the doctor who conducted postmortem

examination deposed that the death of the deceased was due

to asphyxia as a result of drowning. She has noted injury on

the forehead of the deceased and issued Ex.P6 postmortem

report. Ex.P2 - spot mahazar and Ex.P12 - spot sketch at the

scene of occurrence disclose that the water tank in question

was hardly measuring 2 x 2.5 x 2.5 feet. Ex.P8 - the inquest

mahazar and Ex.P6 - postmortem disclose that the deceased

was well built lady with 5.7 feet height.

15. When these facts and circumstances are taken

into consideration, the contention taken by the accused that

the deceased accidentally fell into the tank, sustained injuries

on her forehead and died, cannot be accepted. It is not a

probable cause for the death. The conduct of the accused

immediately after the incident in calling PW8 - Jayaprakash

and informing that he had consumed poison also gives rise to

a serious suspicion which is one of the strongest link in the

chain of circumstances.

16. The prosecution is also relying on the recovery of

MO8 - machete at the instance of the accused. PW11 -

Prashanth the witness to the recovery mahazar - Ex.P9 has

fully supported the case of prosecution. PW17 - Madappa, the

Investigating Officer has also spoken to about the voluntary

statement given by the accused and the recovery of machete

- MO8 which was wrapped in a towel - MO9, which was

produced by the accused from beneath the cot after taking

the Investigating Officer and mahazar witnesses to the spot.

The version of these witnesses is not shaken during the cross

examination, which is another strongest link in the chain of

circumstances.

17. The seizure and the recovery mahazar under

which MOs.1 to 9 seized were sent to the forensic lab for

chemical analysis. Ex.P14 is the FSL report issued by PW16 -

Dr.Chayakumari. As per her evidence, all the 9 material

objects were subjected for serological analysis and found that

the bed sheet, pillow, machhu, towel, saree, blouse, petticoat

and shirt were stained with 'A' group human blood.

Admittedly, the incident had taken place in the house of the

accused and he was very much present at the scene of

occurrence when the incident had taken place. Under such

circumstances, the occurrence of incident is very much within

the knowledge of the accused.

18. Under the provisions of Section 106 of the

Evidence Act, he should have explained as to how the death

of his wife has occurred in an unnatural manner. The accused

has not taken any defence, muchless, a probable defence in

his statement under Section 313 of Cr.P.C. He has not

stepped into the witness box to speak about the incident.

Even though, a half hearted attempt is made by the accused

during cross examination of the prosecution witnesses to

contend that the accused was having gangrene in his legs and

was not in a position to commit the offence in question, such

suggestions were denied by the witnesses. The accused has

not produced any material in support of the same. Therefore,

adverse inference will have to be drawn against the accused.

19. The discussions held above disclose that the

prosecution is successful in proving the guilt of the accused

beyond reasonable doubt for the offence punishable under

Section 302 of IPC. Therefore, the accused is liable for

conviction for the said offence.

20. we have gone through the impugned judgment of

conviction and order of sentence passed by the Trial Court. It

has taken into consideration all the materials on record and

arrived at a right conclusion in convicting the accused. But

however, while sentencing the accused for the offence

punishable under Section 302 of IPC to undergo imprisonment

for life, a rider is inserted that the accused shall remain in

prison until his natural death, which was not called for in the

present case. The Hon'ble Apex Court time and again has

made the position of law very clear that the sentence of

imprisonment for life means life till last breath, unless the

Government exercises the right of remission. Unless a

specific ground is made out to take over the right of the

accused to seek remission, the same cannot be taken away

without assigning any reason. Hence, we are of the opinion

that even though the accused is liable to be sentenced with

imprisonment for life, the same cannot be specified as till his

natural death. Therefore, the order of sentence in that

regard is to be interfered with.

21. Accordingly, the point raised above is answered

Partly in Affirmative holding that the accused has made out a

case to interfere with the impugned order of sentence only to

the extent that the Trial Court has erred in ordering that the

accused shall remain in prison until his natural death.

22. For the reasons stated above, we pass the

following:

ORDER

(i) Criminal Appeal filed by the accused is allowed in

part.

(ii) The impugned judgment of conviction dated

17.08.2017 passed in S.C.No.10007 of 2017 on the file of V

Additional District and Sessions Judge, Shivamogga sitting at

Sagar, is hereby confirmed. The impugned order of sentence

dated 19.08.2017 passed in S.C.No.10007 of 2017 on the file

of V Additional District and Sessions Judge, Shivamogga,

sitting at Sagar, sentencing the accused to undergo

imprisonment till his death, is hereby modified.

(iii) The accused is sentenced to undergo

imprisonment for life for the offence punishable under Section

302 of IPC and to pay a fine of Rs.20,000/-.

Registry is directed to send back the Trial Court records

with a copy of this judgment.

Sd/-

JUDGE

Sd/-

JUDGE

*bgn/-