Karnataka High Court

Kallappa S/O Ishwarappa Sherewad vs The State Of Karnataka on 27 June, 2022

Bench: K.S.Mudagal, M.G.S. Kamal

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                                     CRL.A No. 100427 of 2019


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 27TH DAY OF JUNE, 2022

                          PRESENT
         THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                             AND
           THE HON'BLE MR JUSTICE M.G.S. KAMAL
           CRIMINAL APPEAL NO.100427 OF 2019

BETWEEN:

KALLAPPA S/O ISHWARAPPA SHEREWAD,
AGE: 50 YEARS, OCC: HUDED ONI
AMMINABHAVI, TQ: DHARWAD
                                                  ...APPELLANT
(BY SMT.SUMANGALA A. CHAKALABBI, AMICUS CURIAE)

AND:

THE STATE OF KARNATAKA,
DHARWAD RURAL POLICE STATION, DHARWAD,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD
                                                ...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)

       THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. SEEKING TO CALL FOR THE RECORDS IN S.C. NO.114/2018
ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE AT
DHARWAD AND ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE
THE JUDGMENT AND ORDER OF CONVICTION DATED 27.09.2019
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT
DHARWAD IN S.C. NO.114/2018 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC.


       THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY
M.G.S.KAMAL J., DELIVERED THE FOLLOWING.
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                                           CRL.A No. 100427 of 2019


                                JUDGMENT

Present appeal by the appellant-accused being aggrieved

by the judgment and order dated 27.09.2019 passed in S.C.

No.114/2018 on the file of the Principal Sessions Judge,

Dharwad (hereinafter referred to as "trial Court" for short) by

which the trial Court has convicted and sentenced the

appellant-accused to undergo life imprisonment for the offence

punishable under Section 302 of the Indian Penal Code, 1860

(hereinafter referred to as "IPC" for short) and to pay fine of

Rs.50,000/-, in default to undergo rigorous imprisonment for

one year.

2. Brief facts of the prosecution case is that the

complainant-PW6 alongwith his father Kallappa-accused herein,

mother-Paravva-deceased and his wife Kavita-PW10 and his

children were residing at Amminabhavi Village carrying on

agricultural activities. That his father-the accused was addicted

to alcohol and was demanding money from him and his

mother-deceased Paravva. When they refused to pay the

money as demanded, the accused used to quarrel, attempt to

assault them with a sickle and was threatening them to kill.

That on 27.03.2018 at about 02:00 a.m., his father-the

CRL.A No. 100427 of 2019

accused, had picked up the quarrel with his mother, and

hearing the noise, PW10-wife of the complainant and the

neighbours by name Basavaraj, Kamalavva, Suresh came to

their house. At that time, the accused assaulted Paravva with

sickle on her neck and right hand causing severe bleeding

injuries. The aunt of the complainant namely Yallavva and

Kamalamma had secured the ambulance and got the injured

Paravva admitted to SDM Hospital and at about 04:00 a.m.,

she succumbed to the injuries. Thereafter, complaint at Ex.P11

was filed based on which the Dharwad Rural Police Station

registered a case in Crime No.100/2018 against the accused for

the offence punishable under Section 302 of IPC. On

investigation, a charge sheet was filed against the accused.

3. The prosecution examined 24 witnesses as PWs.1 to

24 and also marked 32 documents as Exs.P1 to P32 and

identified 10 material objects as MOs.1 to 10 and closed its

side. After recording the statement of accused under Section

313 of Cr.P.C., in his defence, he examined five witnesses

including himself as DW3 and other witnesses as DWs.1, 2, 4

and 5 and exhibited five documents and marked as Exs.D1 to

D5.

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4. The trial Court on examination of evidence,

convicted the accused of the offence punishable under Section

302 of IPC. Aggrieved by the same, the appellant is before this

Court.

5. Smt.Sumangala A. Chakalabbi, learned Amicus

Curiae for the appellant-accused reiterating the grounds urged

in the appeal memorandum submitted that the order of

conviction is based on the evidence of the interested witnesses

namely PW.6 and PW10. According to the evidence of PW8-

Basavaraj, PW9-Suresh had taken PW6 outside the house at

the time of the incident and PW9 has deposed that the incident

had taken place before he could reach the spot. That this part

of the evidence has raised the serious doubt with regard to the

very genesis of the incident which the prosecution has failed to

establish beyond reasonable doubt. That there are serious

contradictions and inconsistencies in the narration of events by

the complainant, who is the son of the accused. That PWs.7, 8

and 9 have turned hostile and have not supported the case of

the prosecution. Therefore, their evidence ought not to have

been relied upon. That a combined reading of evidence of

PWs.6, 10 and that of PWs.7 to 9 would establish that evidence

CRL.A No. 100427 of 2019

of PWs.6 and 10 cannot be believed. That the recovery of blood

stained material objects has not been proved by the

prosecution in the manner known to law, the process of

recovery has not been corroborated by the evidence of PWs.3

and 4. Therefore, the entire theory of recovery based on the

alleged voluntary statement is unreliable. That the trial Court

has not appreciated the fact of prosecution not examining the

neighbours of the deceased namely Basavaraj Mutanavar,

Mallappa Karguda and Somanna Talwar as the appellant had

taken specific plea of he being in Yalival Village, Kundagol Taluk

on the day of the incident which circumstance was crucial as

the prosecution failed to prove motive and commission of

offence by the appellant. That the trial Court has not taken into

consideration the evidence produced by the appellant and the

explanation given by him in his statement recorded under

Section 313 of Cr.P.C. That in the postmortem report, there is a

reference "brought in dead" which is contrary to the deposition

of the witnesses who has stated that she was alive and taken

for treatment and died during the treatment and in the

postmortem, the time of death is 24 hours and it is found that

there was 200 grams of undigested food in the stomach of the

CRL.A No. 100427 of 2019

deceased. These factors indicate that there is serious lacuna in

the investigation into the timing of the death of the deceased.

That in the Search Register of the accused, there is a reference

to white shirt and lungi seized from the body of the accused

and there is mention with regard to the blood stains and that

the voluntary statement of the accused was recorded on

27.03.2018 between 16:15 and 16:25 hours as per Ex.P26 and

the accused had not been arrested. As such, the voluntary

statement has been allegedly recorded when the accused was

not in custody, thereby defying the provisions of Section 26 of

the Evidence Act, resulting in non-reliance of the alleged

information for the purpose of recovery of the weapon. Hence,

seeks for allowing of the appeal.

6. On the other hand, Sri.V.M.Banakar, learned

Additional State Public Prosecutor justifying the evidence that

the complaint has been filed at 07:00 a.m. on the day of the

incident and there is no delay. Though the eye witnesses have

partly turned hostile, but they have supported the case of the

prosecution and their evidence is corroborated by the evidence

of the Doctor. The opinion at Ex.P15 regarding use of the

weapon in commission of the offence has been established. As

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regards the evidence of DWs.1 to 5 with regard to accused

being in Yalival Village, the same cannot be taken into

consideration, as the accused has failed to prove his absence

and the said witnesses are interested witnesses. The plea of

alibi has not been established by the accused satisfactorily. No

grounds are made out. Hence, seeks for dismissal of the

appeal.

7. Heard the learned counsel for the parties. Perused

the records. The point that arises for consideration is:

"Whether the trial Court is justified in passing the judgment and order convicting the accused for the offence punishable under Section 302 of IPC?"

8. The case of the prosecution is based on the eye

witnesses and on recovery of the material object namely the

sickle upon the information furnished by the accused in his

voluntary statement.

9. There is no dispute with regard to the fact of

accused being husband of Paravva and they residing in

Amminabhavi Village alongwith their son-the complainant-PW6,

daughter-in-law-PW10 and their grand-children. That on

27.03.2018, deceased who had sustained blood injuries due to

CRL.A No. 100427 of 2019

assault by the accused on her neck and hand had died of the

said injuries.

Cause of death:

10. As per the evidence of PW13-Manjunath Patil, who

had conducted the postmortem of the deceased as per Ex.P12,

following external and internal injuries are shown:

"1) Multiple abraded contusions present 2 no's of size ½ cm x ½ cm and 1 cm x ½ cm on right side of middle 1/3rd part of neck are present.

2) There is linear penetrated wound on right side of the neck in its middle 1/3rd and lower 1/3rd region. Size of the injury is 2.5 cm length x 1 cm width x 3 cm deep. Margins of the wound are inverted, contused border in lower margin track of the wound running postero medially, blood clots present. On dissection right sternum mastoid muscle a transverse 2 cm cut present, hematoma present deep to muscle, separation of lower neck structures revealed injury to neurovascular structures of neck, there is perforation of internal jugular vein 2cm length and front 2/3rd circumference of common carotid artery transversely cut 2 cm below its bifurcation. Clots and hematoma present in pre verterbral fascia for 20 cm length and right side of

CRL.A No. 100427 of 2019

trachea and esophageal structure, clots present over apex of right pleura.

3) There is lacerated wound on inner side and distal 1/3rd of right fore arm of size 4 cm x 7 m x bone deep, avulsion of soft tissue (muscles) present. Blood clots present, margins are irregular, deeper structures visible.

            4)    Multiple abrasions over area 5 cm x 2 cm
     away from injury No.3.
            5)    Multiple abrasions of size ½ cm x ½ cm
     on back of right hand.
            6)    Multiple abrasions of size 2 mm x 2 mm
     on outer side of right wrist.

The injuries mentioned above are ante mortem in nature and are fresh.

Time since death: Within 24 hours before postmortem examination.

Opinion as to the cause of death: In my opinion the cause of death is due to injury to vital structures (vessels) on right side of neck."

11. The cause of the death is shown as "due to injury to

vital structures (vessels) on right side of neck". Considering the

nature of the injuries and the opinion with regard to the cause

of death and the deposition of PW13, who has deposed that the

injuries found on the body of the deceased could be caused by

the sickle at MO2 and her death was the result of such injuries,

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the prosecution has established that the death was homicidal.

Though in the cross-examination, it was suggested that the

injuries found on the neck of the dead body could have been

caused by falling on the sharp objects, nothing has been

established by the defence that the injuries were caused by

deceased having had any fall as sought to be suggested. In

that view of the matter, the deposition of PW13 is rightly taken

note of by the trial Court.

12. This takes us to the next circumstance for

consideration is, "whether the injuries were caused by the

accused resulting in the death of the deceased?". In this

regard, it is necessary to scrutinize the evidence of other

witnesses.

Evidence of the prosecution produced to prove the guilt

of the accused:

13. PW6-Mailarappa Sherewad is the complainant in the

present case. He is also the son of the accused and the

deceased-Paravva. Reiterating the contents of the complaint at

Ex.P11, the said witness stated that on 26.03.2018, after the

meal, they had gone to sleep at 10:30 p.m. The accused had

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CRL.A No. 100427 of 2019

come home in inebriated condition and was quarrelling with

deceased-Paravva. Between 01:30 a.m. and 02:00 a.m., the

accused had intensified his quarrel. Hearing the noise, PW6 and

his wife-PW10 woke up and went to pacify the accused. Hearing

the noise, PW7-Kamalavva, PW8-Basavaraj, PW9-Suresh

Kumbar had also come. When all of them went near the

accused to pacify, the accused assaulted Paravva on the right

side of her neck by the sickle which he had in his hand. When

Paravva raised her hand in defence, she sustained injuries on

her right hand as well. Since she sustained severe bleeding

injuries, they treated her by tying clothes i.e., petticoat and

saree on her neck and hand. CW11-Kamalavva and CW17-

Yallavva had called the ambulance and the injured-Paravva was

carried to SDM Hospital, Dharwad for treatment, where she

died at about 04:00 a.m. The said witness has categorically

stated that there was light in their house and they saw accused

assaulting the deceased in the said light. While they were

treating the injured-Paravva, the accused ran away with the

sickle which he had used to assault the deceased. The said

sickle is marked as MO2. The witness has also identified clothes

which are marked at MOs.3, 7 and 8 which are used to tie the

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CRL.A No. 100427 of 2019

injuries of the deceased. The witness has also identified the

spot panchanama and the sketch at Exs.P3 and P4 and

photographs-Ex.P5. In the cross-examination, the witness has

denied the suggestion that the accused had 10 acres of land in

Yalival Village and he was cultivating the same. He has also

denied the suggestion that on the date of the incident, accused

was at Yalival Village and on hearing the death of the deceased,

accused had come for funeral to Amminabhavi Village. All other

questions to discredit the version of PW1 have yielded no

result. PW6 has withstood the test of cross-examination.

14. PW7 is Kamalavva, who is the neighbour of the

deceased. She has spoken about the accused frequently

quarrelling with the deceased in his alcoholic condition and

threatening the deceased of eliminating her life. She has also

spoken about the people of her lane advising the accused not

to fight with the deceased. She has spoken about the quarrel

that took place at 02:00 a.m. and she going to the house. She

has also spoken about the accused assaulting the deceased on

neck with the sickle and running away with the same and she

alongwith others carrying the injured to the SDM Hospital for

treatment where she died at 04:00 a.m. The said witness has

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CRL.A No. 100427 of 2019

been considered partly hostile. In the cross-examination by the

prosecution, she has stated that by the time she went to pacify

the accused, he had assaulted on the neck and hand of the

deceased causing severe bleeding injuries. She has admitted

that she had given the statement to the Investigation Officer

regarding she having seen the accused running away from the

spot with the sickle in his hand. In the cross-examination by

the defence, she denied the suggestion that the accused had

contracted second marriage and ever since then, his

relationship with the deceased was not cordial and that since

then the accused had been residing at Yalival Village. The

witness reiterated that the accused was staying in their village

Amminabhavi and denied that he was residing in Yalival Village.

She has reiterated that the daughter-in-law of the accused had

opened the door and the incident had taken place after they

entering the house. She has also spoken about she giving

water to the injured and tying her neck and hand with the

clothes. She has stated that having seen accused running away

that she was told about the accused assaulting the deceased

with the sickle by the daughter-in-law of the accused. Nothing

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CRL.A No. 100427 of 2019

has been elicited to discredit the evidence of this witness

regarding her presence at the spot.

15. PW8-Basavaraj is another neighbouring witness,

who is son of PW7-Kamalavva. The said witness has also

spoken about the alcoholism and frequent fights of the accused

and he visiting the house of the accused at 02:00 a.m. on

26.03.2018. He has spoken about he having seen the accused

assaulting the deceased with the sickle on her neck and hand

causing severe bleeding injuries and thereafter accused running

away by the sickle in his hand. The witness has stated that they

saw the incident in the light at home. In the cross-examination,

even this witness has reiterated, daughter-in-law of the

deceased opening the door at the time of the incident. He has

categorically stated that he having seen accused assaulting the

deceased. He has also spoken about tying cloth around the

neck and the hand of the injured deceased and taking her to

the hospital. He has identified MO2-sickle used by the accused

to cause injuries to the deceased. He has denied the suggestion

of accused not being present at the place of incident. Though

he has stated that Suresh had brought Mailarappa outside, he,

his mother, accused and the injured were inside the house. He

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has further stated that PW6-Mailarappa was running around

having seen the incident.

16. PW9 is one Suresh Kumbar. He is also a

neighbouring witness. He has also spoken in the same line that

of PWs.7 and 8 and he has also spoken about he having seen

accused assaulting the deceased causing injury on to the neck

and hand and running away from the scene of offence with

sickle in his hand. Nothing has been elicited from this witness

to discredit his evidence.

17. PW10-Kavita Sherewad, wife of complainant,

daughter-in-law of the accused and the deceased. On the date

and at the time of the incident, she was present at home. She

has also spoken in the same line with that of complainant-PW6.

She has spoken about she having seen the accused assaulting

the deceased with the sickle in their presence. She has denied

the suggestion that accused was not present and was not living

in Amminabhavi Village. She has denied the suggestion that

since accused having contracted second marriage, deceased

was quarrelling with accused. She has emphasized she having

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seen the accused quarrelling with the deceased in alcoholic

condition and he having assaulted the deceased.

18. From the evidence of the aforesaid witnesses, there

is consistency in their statements regarding their presence at

the scene of offence on the date and time of the incident and

regarding they witnessing accused quarrelling with the

deceased in an inebriated condition and thereafter assaulting

the deceased with the sickle on her neck and right hand

causing severe blood injuries resulting in her death.

19. PW11-Raju Malleshanavar is the scribe of the

complaint-Ex.P11. Nothing has been elicited in his cross-

examination.

20. PW12-Mahadevappa Madivalar is a witness for

seizure of sickle-MO2 and lungi-MO3 which was seized at the

information and instance of the accused near the pump house

of Amminabhavi Village on 27.03.2018 at about 04:00 to 04:30

p.m.

21. PW14 is Suresh Shinganahalli, PDO of Gram

Panchayat, Amminabhavi, who has spoken about document at

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Ex.P17 being the certificate issued by the Gram Panchayat

regarding the property being a tiled roof house bearing

No.378/1 standing in the name of PW6.

22. PW15-Sadashivappa Hadimani is the Assistant

Executive Engineer, who has spoken about the sketch of the

place of incident at Ex.P19. Nothing has been elicited from this

witness.

23. PW16 is Head Constable, who carried the complaint

and the FIR to the Magistrate on 27.03.2018 at about 07:30

a.m.

24. PW17 is the Woman Constable. She has spoken

about conducting the inquest mahazar and receiving of the

postmortem report and handing over of the dead body.

25. PW18 is the PSI, who was in-charge of the Police

Station and has spoken about receiving of the complaint from

PW6 on 27.03.2018 at 07:00 a.m. as per Ex.P11.

26. PW19-Mallikarjunayya is the Assistant Engineer,

HESCOM, who has spoken about letter dated 22.05.2018 at

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Ex.P22 with regard to supply of power to Amminabhavi Village

between 02:00 to 03:00 a.m. on 27.03.2018.

27. PW20 is the Head Constable, who has spoken about

carrying seven sealed items from the Forensic Science

Department of SDM Hospital and handing it over to the

Investigation Officer.

28. PW21 is the Police Constable, who has spoken

about visiting the mortuary of the Hospital on 27.03.2018 and

conducting the inquest panchanama as per Ex.P1 and taking

the photograph as per Ex.P2.

29. PW22 is Mohan Patil, CHC, who has spoken about

drawing up of the spot panchanama as per Ex.P3 and a sketch

at Ex.P4 and seizing of blood stained towel as per MO1. He has

also spoken about arresting of the accused and recording of his

voluntary statement and the accused taking them to water

pump house near Amminabhavi Village and seizing of sickle and

blood stained lungi as per Exs.P6 and P7.

30. PW23 is Dr.Mahadeshwaraswamy, the Assistant

Director of RFSL, Belagavi, who has spoken about he issuing

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the certificate of examination of material objects as per Ex.P23

stained with human blood of 'A' group.

31. PW24-Prashant Nayak is the Investigation Officer,

who has narrated the entire process of investigation.

Suggestions have been made to the Investigation Officer with

regard to the accused being resident of Yalival Village which

has been denied.

All the official witnesses namely PW11 to PW24 have

supported the case of the prosecution and nothing is

established to disbelieve their version.

Defence evidence:

32. DW1-Nagappa Sherewad is the younger brother of

the accused. The said witness has stated that accused has been

residing in Yalival Village and the deceased-Paravva being the

wife of the accused was from Amminabhavi Village. That the

accused had contracted second marriage with one Mahadevi,

who was from Belavadi Village of Bailhongal Taluk. That after

the second marriage, the deceased-Paravva was quarrelling

with accused. That they possessed 10 acres of land and apart

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from that they had also taken others land on lease and accused

was in-charge of these lands. That PW6-Mailarappa the son of

the accused and the deceased-Paravva was fighting with them

for money and the property. That about 20 years ago,

deceased had left and gone to her parental house and was

residing in a rented house at Amminabhavi. That on hearing

the news of death of the deceased, all of them had gone to

Amminabhavi and accused had also accompanied them, but

they did not go to the house of the deceased at Amminabhavi

Village or to the graveyard and they remained in the bus stand.

They all had tea together in the bus stand, thereafter, he did

not know where did the accused go. That the accused did not

even attend the funeral in the graveyard. That on questioning

about the whereabouts of the accused with Mailarappa-PW6, he

fought with them and they searched for the accused for no

avail and after four days they learnt that the Police have taken

him into the custody.

33. In the cross-examination by the prosecution, the

said witness has pleaded ignorance as to the events that took

place in Amminabhavi and also pleaded ignorance as to the

killers of Paravva. He has also pleaded ignorance of the reasons

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accused contracting the second marriage. He has admitted that

when the deceased was at Amminabhavi, accused used to go

and stay with her. He has pleaded ignorance as to the

happenings between the deceased and the accused and the

manner of their fight. He has admitted that he is having very

good relationship with the accused-his brother and would help

him under any circumstances. He has admitted that accused

and the deceased were doing grain business in Amminabhavi

Village.

34. DW2-Basavaraj Pujar is a neighbouring witness.

The said witness has stated that he visited the house of the

deceased on the date of the incident between 12:30 and 01:00

a.m. and at that time, the door was locked and there were four

to five people standing near the house. That he himself opened

the door, when he called, Kavita-PW10 came and opened the

door. At that time he noticed Paravva sleeping on the floor.

That Kavita informed him that she had sustained injuries on her

right hand. That PW6-Mailarappa was sweeping the floor,

collecting the glass pieces. That Paravva was taken in an

ambulance to the hospital and she was talking. That Kamalavva

also went alongwith the deceased in the ambulance. That the

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accused used to stay in his house in Amminabhavi Village. In

the cross-examination, the said witness has stated that he went

to the house of the deceased as there was noise from inside the

house. That he did not know about the injury sustained by the

deceased on her right hand and he did not ask Kavita regarding

the same. That he does not know who had given the complaint

and what was the progress made in the investigation. That on

the date of the incident, accused had come to his house, but

did not tell him anything. That he did not go to the funeral of

Paravva, as he had cattle in his field. That he does not know

about the relationship between the accused and the deceased

and what was the issue they were quarrelling about. He admits

that the accused is very close to him, that he would help him

under any circumstances including rendering financial

assistance and giving evidence in the Court.

35. DW3 is the accused himself. He has stated that

deceased-Paravva, his son-Mailarappa, his daughter-in-law-

Kavita were residing in Amminabhavi Village, where he used to

visit often, but he was carrying on his agricultural activity at

Yalvial Village where his family owned ten acres of land. In

Yalival Village, he and his brothers were staying together. That

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deceased-Paravva herself had performed his second marriage

with Mahadevi. That he has no information about deceased-

Paravva having been killed and he learnt about the same

between 08:00 and 08:30 a.m. over phone when he went to

toilet. That on learning the same, he and his family members

and others went to Amminabhavi Village at about 12:30 p.m. in

a vehicle. After asking his brother to provide tea to the people

who had come with him, he went to the house at Amminabhavi

Village, at that time, the people of the lane made him to sit in

an Omni vehicle of one Raju and took him to Dharwad Rural

Police Station. He was not allowed to attend funeral by the

Police, who were asking to sign a document. The Police

thereafter took him to Marewad where they handed over a

sickle-MO2 in his hand and took photograph. The Police did not

give him the lungi and thereafter took him to the Police Station

and then produced before the Magistrate. He has stated that he

has not been in talking terms with his children for the past 15

years and he has got nothing to do with the murder of his wife.

He produced four documents namely Bank pass book-Ex.D1,

RTC extract-Ex.D2, wedding invitation card-Ex.D3, ration card-

Ex.D4.

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36. In the cross-examination, the said witness has

stated that he does not know about the death of his wife-

Paravva. He does not even know if she was alive or dead. That

he did not meet his wife before he went to jail. But he clarifies

that his wife was murdered. That deceased-Paravva being the

first wife and was not having any health issues before her

death. He admits that deceased-Paravva and PW6 were doing

grain business. That about 13 years ago, his second wife

Mahadevi had left him and had permanently gone to her

parental house at Bailhongal and he had no contact with her.

That he has been permanently residing with Paravva, but

denied the suggestion of he causing her mental and physical

harassment due to his alcoholic addiction. That he was arrested

by the Rural Police on the date of death of his wife. That

whenever he visited Amminabhavi, he used to stay with the

deceased-Paravva as well as in the house of his sister.

Referring to Exs.P8 and P9-photographs, he identified himself,

Police and the panch witnesses. He states that the said

photographs were taken near pump house.

37. DW4 one Yallappa Hooli is a villager from Yalival.

He spoke about he and accused and about 20 people going to

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Amminabhavi Village for the funeral of the deceased in Cruiser

vehicle and after having tea, the accused who went to the

house did not return even to funeral.

38. In the cross-examination, the said witness has

stated that he had no personal knowledge as to in which case

the accused was involved. That he did not enquire with people

the cause of death of Paravva. That he does not know the

names of 20 people who had gone with him in Cruiser vehicle

to Amminabhavi to the funeral of the deceased. He does not

know whom does the said Cruiser vehicle belong to and who

was the driver.

39. DW5 one Gadigeppagouda is a villager of Yalival.

The said witness has stated that deceased-Paravva was staying

in Amminabhavi with her children and accused was often

visiting her. That they had gone to the funeral of the deceased

at about 11:00 or 12:00 p.m., and the accused was with them.

Thereafter, the accused did not come even for funeral. In the

cross-examination, the said witness has stated that on hearing

the news, about 17 to 18 people went to Amminabhavi for the

funeral. But he does not know the names of those people. That

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the dead body was in the hospital which was brought in an

ambulance at about 02:00 to 02:30 p.m., but he did not

enquire the cause of the death of the deceased. But he heard

people saying that she was not well. He does not know

personally the cause of death of Paravva and what was the

case registered against the accused.

ANALYSIS

40. From the perusal of the records and the evidence of

the prosecution witnesses as referred to above, the accused

has not made out any grounds to disbelieve the versions of

PWs.6 to 10, who are his son and daughter-in-law and the

neighbours. The said witnesses were present and personally

witnessed the quarrel between the accused and the deceased

and also the accused assaulting the deceased with the sickle on

her right side of the neck and on her right hand. The evidence

of these witnesses is consistent and is inconsonance with each

other. Though the counsel for the appellant-accused argued

that the statement of PWs.7 to 9 would indicate that PW6 was

taken out of the house and he had not witnessed the incident,

the said version is not supported from the records.

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41. Learned counsel further submitted that the entire

process of recovery of MO2-sickle and MO3-blood stained lungi

at the instance of the voluntary statement given by the accused

at Ex.P26 is unreliable as the said statement was recorded on

27.03.2018 between 16:15 and 16:25 hours when the accused

was not in custody. Referring to Section 27 of the Evidence Act,

learned counsel submitted that such statement can only be

relied upon if it was recorded when the accused was in the

Police custody. It is seen that the accused was arrested at

04:30 p.m. on 27.03.2018 and the voluntary statement has

been recorded between 04:15 to 04:25 p.m. seizure mahazar

was drawn as per Ex.P6.

42. Further referring to the postmortem report at

Ex.P12, learned counsel submitted that there is a mention of

"brought in dead" in Ex.P12 which negates the very case of the

prosecution with regard to the deceased having been taken by

PW7-Kamalavva to the hospital for treatment.

43. At the first blush, though the aforesaid instances

pointed out by the counsel for the appellant appears to be error

or defect in the case of the prosecution, but in our considered

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view, the same are not acceptable to the extent dislodging the

entire case of the prosecution. The evidence of the eye witness

referred to above is categoric and unambiguous, in accused

picking up quarrel with the deceased and assaulting her with

the sickle causing severe blood injuries resulting in her death.

There are no other possibilities of any nature of whatsoever

creating any kind of doubt with regard to the commission of

offence by the accused.

44. The accused has set up plea of alibi on the premise

that on the date of incident, he was at his Village Yalival and in

that regard, he has produced four witnesses who have deposed

that they came alongwith accused to attend the funeral of the

deceased at Amminabhavi Village. The law with regard to alibi

is dealt with by the Apex Court in the case of Jayantibhai

Bhenkarbhai vs. State of Gujarat reported in (2002) 8 SCC

165 wherein at paragraph 19 has held as under:

"19. The plea of alibi flows from Section 11 and is demonstrated by illustration (a). Sarkar on Evidence (15th Edition, p.258) states the word 'alibi' is of Latin origin and means "elsewhere". It is a convenient term used for the defence taken by an accused that when the occurrence took place he was

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so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligations is cast on the Court to weigh in scales the evidence adduced by the prosecution in proving the guilt of the accused and the evidence adduced by the

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accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the Court would evaluate the prosecution evidence to the see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to benefit of that reasonable doubt which would emerge in the mind of the Court."

(emphasis supplied)

45. In the light of the aforesaid provisions of law with

regard to the alibi, in the instant case as already noted, the

prosecution has established the guilt of the accused by

producing cogent and reliable evidence. Therefore, the burden

is on the accused to prove his case of alibi. As noted above,

DWs.1, 2, 4 and 5 have not created any confidence in the mind

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of the Court to believe their version of accused being the

permanent resident of Yalival and carrying on the agricultural

activities. In fact, in their evidence, the witnesses have

admitted that accused was visiting and staying with deceased

at Amminabhavi Village. The accused himself has categorically

admitted of he residing with the deceased after his separation

from his second wife-Mahadevi about 13 years ago. The said

witness referring to the photographs at Exs.P8 and P9 has

admitted his presence and the presence of panch witnesses and

he handing over sickle and lungi to the Police from pump house

area. The documents produced by the accused at Exs.D1 to D5

are hardly of any assistance to the accused to prove his case of

alibi, inasmuch as he himself and the other witnesses have

admitted of accused visiting and staying with the deceased at

Amminabhavi Village. The trial Court has taken into

consideration these aspects of the matter and has arrived at

just conclusion of the matter in passing the impugned

judgment and order.