Ayyappa S/O Sidramappa Javali vs The State Through
2023 Latest Caselaw 2242 Kant

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                                         Crl.A.No.200033/2019




          IN THE HIGH COURT OF KARNATAKA
                AT KALABURAGI BENCH

         DATED THIS THE 17th DAY OF APRIL, 2023
                          PRESENT
       THE HON'BLE MR. JUSTICE SUNIL DUTT YADAV
                            AND
  THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
          CRIMINAL APPEAL NO.200033/2019

BETWEEN:
Ayyappa S/o Sidramappa Javali,
Age : 24 years, Occ: Worker in ACC Factory,
R/o Wadi, Tq.Chittapur,
Dist : Kalaburagi.
                                                ... Appellant
(By Sri Nandkishore Boob, Advocate)

AND:

The State through Shahapur Police Station,
Now represented by Addl. SPP
High Court of Karnataka,
Kalaburagi Bench, Kalaburagi.
                                              ... Respondent

(By Sri Prakash Yeli, Addl. SPP)

       This Criminal Appeal is filed under Section 374(2) of
Code of Criminal Procedure, 1873 praying to set aside the
judgment of conviction and order of sentence and fine
imposed on the appellant/accused by the learned Sessions
Judge, Yadgiri in S.C.No.14/2015 dated 13.11.2018 for the
offence punishable under Section 302 of IPC in the interest of
justice and equity.
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                                        Crl.A.No.200033/2019



      This appeal having been heard through physical
hearing/video conference and reserved for Judgment on
27.03.2023, coming on for pronouncement of Judgment this
day, Ramachandra D.Huddar J., delivered the following:

                        JUDGMENT

Appellant-accused has preferred this appeal under

Section 374(2) of Cr.PC being aggrieved and dissatisfied by

the judgment of conviction and order of sentence passed by

the District and Sessions Judge, Yadgiri in SC No.14/2015

dated 13.11.2018 for the offence punishable under Section

302 of IPC. The learned trial Court has passed the sentence

against accused as under:

"that the accused is sentenced to life imprisonment and a fine of `5,000/-. In default of payment of fine amount, he shall undergo simple imprisonment for 3 months."

2. The facts leading to the case of the prosecution

are as under:

That the complainant Sharanappa S/o. Erappa

submitted a complaint as per Ex.P1 stating that deceased

Basamma alias Radhika's marriage was performed with

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accused about one and half years prior to filing of the

complaint. Accused is the resident of Wadi village. It is stated

in the complaint that for about two months after marriage,

accused looked after his wife Basamma very well. Thereafter,

he started harassing her and also bet her. Whenever his

sister Basamma visits her parental house at Dornalli, she

used to inform that her husband always looks at her with

suspicion and suspects her fidelity. Whenever the deceased

used to speak to other persons, accused used to assault her

by consuming alcohol. This fact was informed by the

deceased to her parents. All the members of the family of the

complainant advised her to lead a good family life with her

husband. But, always accused suspected the fidelity of

Basamma and continued the said harassment and ill-

treatment both physically and mentally. It is further alleged

that because of this persistent harassment and ill-treatment,

the complainant and his members of his family brought

Basamma to their house. Thereafter, it is alleged that the

accused came to the house of the complainant and requested

to send his wife and quaralled with them. Because of the

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attitude of the accused, it was informed to the accused to

bring his father and then only they will send the deceased to

their house. Accordingly, after two three days father of the

accused, Sidramappa came to the village of the complainant

and took the deceased to his house. After one and half

months accused attempted to kill Basamma by pouring

kerosene on her. At that time, father of the accused rescued

Basamma and brought her to her parental house. Since then,

she was residing in her parents house. In the meantime,

twice the accused came to the village of the complainant and

requested to send Basamma with him. But, they did not

send.

3. A specific allegation has been made by the

complaint that on 5.9.2014 at about 9.00 p.m. accused came

to Dornalli village to the house of the complainant. At that

time, the complainant and other members of the family

asked him to have the dinner. But, accused told that he has

completed his dinner at Yadgiri. At that time, he had drunk

alcohol. At about 10.00 p.m. he took his wife along with him

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for the purpose of sleeping, upstairs. At about 3.30 a.m.

accused made his wife to get up and asked her to accompany

him to answer the nature's call. At that time, another sister

of complainant by name Suvarna noticed going away of

accused and Basamma together. Even one Maruthi also has

seen. Both went outside and at about 4.00 a.m. on 6.9.2014,

when accused took Basamma with him to answer the

nature's call, by suspecting her fidelity assaulted Basamma

by knife and killed her. This assault being committed by the

accused on the person of Basamma was witnessed by

Ningappa S/o.Yamanappa who was returning to his house

after attending his nature's call. Thus, it is alleged that by

suspecting the fidelity of Basamma, accused has killed

Basamma by assaulting her with knife.

4. With these allegations, he filed a complaint

before Shahapur Police station as per Ex.P1 before PW.19-

Chayappa Nyamagoudar, who was PI Shapur at that time.

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5. Based on the complaint filed at 10.30 am

6.10.2014, PW.19 registered the crime in Crime

No.257/2014, prepared FIR as per Ex.P19 and set the

criminal law in motion.

6. Thereafter, he visited the scene of offence and as

the marriage of deceased and accused had taken place about

one and half years back, he requested the Taluka Executive

Magistrate, to prepare the inquest panchanama. In between

11.15 am. And 12.10 pm. in the presence of CW.2,3 panchas

Investigating Officer prepared the panchanama of the scene

of occurrence as per Ex.P2. Under Ex.P2 he seized one pair of

slipper, one plastic chambu, blood stained soil and sample

soil. Prepared the eye sketch of scene of occurrence as per

Ex.P23. The seized articles are marked at MO nos. 1 to 4.

Took the photograph of the scene of occurrence as per Ex.p9.

7. Shifted the dead body to the hospital. On the

same day itself, he prepared the Panchanama in between

2.00 p.m and 2.45 pm. In the presence of panchas as shown

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by CW.7 Suvarna as per Ex.P11, the place where the

deceased and accused were sleeping on the previous night.

He also seized 90 ml. Ooty arrack bottle, RR gutkha chit

which are marked at MO no.9 and 10 and prepared the eye

sketch Ex.P11 and took the photograph Ex.P24. Complainant

handed over the photographs of the marriage as per Ex.P3

and P4.

8. He came to the police station and his police

constable produced the cloths MO nos. 5 to 7 at 3.00 p.m. He

seized the same by preparing the panchanama as per Ex.P12

in between 3.00 pm. and 3.20 p.m. Recorded the statements

of witnesses i.e., CWs.5 to 16. Asked the staff to apprehend

the accused. On 7.10.2014, along with report Ex.P26, his

staff CW.25 produced the accused at 3.00 a.m. before him.

He recorded the voluntary statement of the accused. In his

statement, accused confessed that, the knife used for

commission of the murder has been concealed by him and if

he is taken to the said place as shown by him, he will

produce it. Accordingly, on 7.10.2014, he called CWs.2 and 3

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panchas, and in between 6.30 p.m. and 7.30 a.m. as accused

has produced the shirt and blue jeans pant being blood

stained he seized them under Ex.P14. The said shirt and pant

are marked at MO 11 and 12. He took the photographs at

Ex.P15. Thereafter, accused lead the IO and the panchas in a

police jeep towards Seeme Maramma temple on Shahapur-

Yadgiri road and took them backside of the temple and there

he searched and produced the knife being blood stained

before the Investigating officer. Accordingly, this

Investigating Officer prepared the seizure panchanama in

between 8.30 a.m. and 10.30 a.m. as per Ex.P13 and seized

the said knife marked at MO-8, took the photographs as per

ex.p16. Thereafter, accused was produced before the court

and was remanded to the judicial custody.

9. On 8.10.2014, he recorded the statement of

CW.12 Sidramappa. Thereafter on 19.12.2014, he sent the

seized articles for the purpose of scientific examination

through his staff. Obtained the map from PWD as per Ex.P22,

a letter from Panchayat Development Officer as per Ex.P20

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and report Ex.P30. After completion of the investigation, he

filed the charge sheet. As he received the FSL report on

15.1.2015, as per Ex.P31 he has produced the same before

the Court.

10. The jurisdictional Magistrate, after filing charge

sheet took the cognizance of the offence and as per the

orders dated 28.2.2015, as the offence alleged against the

accused was exclusively triable by the sessions court

committed the case to the Sessions Court for trial. Copies of

the papers were furnished as contemplated under Sc.207 of

Cr.PC.

11. The learned District and Sessions Judge, Yadgir,

after hearing both the side, framed the charge against the

accused for the offence under Section 302 of IPC read over

and explained the same to the accused. He pleaded not

guilty and claimed to be tried.

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12. To prove the guilt of the accused, the prosecution

examined in all 22 witnesses from PWs.1 to 22 before the

trial court and got marked Ex.P1 to P31 with respective

signatures thereon and MOs.1 to 12 and closed prosecution

evidence.

13. After the closure of the prosecution evidence,

accused was questioned under Section 313 of Cr.pc so as to

enable him to answer the incriminating circumstances

appearing in the evidence of the prosecution. He denied his

complicity in the crime and did not choose to lead any

defense evidence on his behalf.

14. The learned trial Court having heard the

arguments of both sides, and on perusal of oral and

documentary evidence, by appreciating the evidence so

adduced by the prosecution, found the accused guilty of

committing the murder of his wife Basamma and therefore,

convicted and sentenced him as stated above.

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15. This judgment of conviction and sentence passed

by the trial court is challenged by the accused-appellant on

the following grounds:

That, impugned judgment and order of sentence is

contrary to law and facts and material placed on record.

PW.1 is the brother, PW.4 is the other PW.5 and 10 are

sisters of deceased-Basamma who are very much interested

to falsely implicate the accused. PW.6 is the husband of PW.5

who is not an eye witness to the said incident but, speaks

regarding cruelty and harassment attributed by the accused

and also deposing that accused was suspecting his wife's

character. They cannot be termed as last seen witness.

The learned trial Court examined Ningappa and

Bhimavva regarding the incident of assault by the accused on

the deceased but they are in fact not the eyewitnesses.

There are contradictions and omissions in the evidence of all

these witnesses as stated in the appeal memo. It is the case

of the prosecution that, accused and deceased have left the

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house at 4.00 a.m in the morning hours to answer the second

call of nature. But PWs.4 to 7 have stated that from 3.00 a.m.

to 3.30 a.m. It is PW.8 and 13 informed them. There is a clear

admission on this aspect. Therefore, evidence PWs.1, 4 to 7

and 10 cannot be believed. There is improvement in the

statement of PW.8 and 13. PW.13 has stated that she has gone

to attend the 2nd call of nature at 4.00 a.m. along with grand

children. But, in the cross-examination, she has stated that she

alone went. Her evidence is full of improvement. The learned

trial Court has not properly appreciated the evidence placed on

record which is full of contradictions, omissions improvements

and discrepancies. It is further stated that, by looking to the

post mortem report nothing is mentioned regarding the

presence of factual features available on the dead body.

Deceased must have died before 12.00 midnight as the PM

report shows that she died about 12-24 hours prior to

conducing of PM. The so called knife as alleged by the

prosecution has not been recovered at the instance of the

accused. There are inconsistencies in the evidence of the

prosecution which cannot be believed at all. Amongst other

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formal grounds, it is prayed by the accused-appellant to set

aside the impugned judgment and acquit him of the charges

so levelled against him.

16. After filing this appeal, the same is admitted.

Records of the trial Court are secured. Learned Addl. SPP

.took notice of this appeal on behalf of the State.

17. We have heard the arguments of both the side.

Perused the records.

18. It is the case of murder of deceased Basamma

because of assault on her by using the knife. Before

discussing the other evidence, it is the bounden duty of the

prosecution to prove the homicidal death of the deceased.

Once it is proved about the homicidal death of deceased,

then, the question comes that who is responsible for the

murder of deceased Basamma.

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19. To prove the same, we have the evidence of

PW.1 complainant -Sharanappa. He speaks about death of

Basamma because of the assault on her by knife, he lodged a

complaint against accused as per Ex.P1. He showed the

scene of offence as per Ex.P2. The police have showed her

clothes marked MO nos. 5 to 7 which were seized by them.

Likewise, PW.2 Hanamanth Saibanna, speaks in his evidence

about conducting of inquest panchanama as per Ex.P10

wherein it is noticed that Basamma had sustained stab injury

on her waist and because of that she died. Further, PW.3

Smt.Devamma is also an inquest pancha and who was states

about stab injury on the deceased Basamma. The other

witnesses PW.4 Sharanamma, PW.5 Suvarna pw.6 Maruthi

PW.7 Mallappa PW.8 Ningappa PW.10 Sangamma, have

stated about unnatural death of Basamma. Amongst them,

PW8 Ningappa is an eye witness to the said incident.

20. PW.11 Dr.Jagadeesh is the doctor who has

conducted the post mortem on the deceased as per Ex.P18

and he opines that the death was due to rupture of liver as a

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result of stabbing by knife. The death was caused because of

stab injury. The factum of unnatural death of deceased is not

denied. Even PW.13 Bhimavva an eye witness has stated

about assault of Basamma with knife.

21. The aforesaid documents like inquest

panchanama and the PM report and the photographs showing

the unnatural death of deceased are not denied by the

defense either in the cross-examination or during recording

of statement under Section 313 Cr.P.C. So also there is no

denial of the same during the course of cross-examination

and during the course of arguments.

22. If all these factual features coupled with the

documents are read together, it can safely be held that the

deceased Basamma had suffered homicidal death. Thus, the

homicidal death of the deceased is proved by the prosecution

with legal evidence.

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23. As stated supra, though it is proved by the

prosecution that deceased suffered homicidal death itself is

not sufficient to connect the accused that he is the real

culprit in the commission of the crime. To ascertain who is

responsible for the murder of the deceased, we have to read

both oral and documentary evidence lead by the prosecution.

24. In this case, the marriage between accused and

Basappa being performed in front of the house of the

accused at Wadi about one and half years back prior to her

demise is not denied. So also, it is not denied that after

marriage, deceased went to her matrimonial home and lived

there happily for one and half months is also not denied. It is

also not denied that after one and half month's, deceased

came to her parental house and informed that her husband

i.e. accused started suspecting her fidelity and used to raise

objections stating that why she speaks with other persons.

Accused started suspecting her character and started

harassing her both physically, mentally. This fact was

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informed by her to her parents and brothers. There was an

advice by them to lead happy married life.

25. It is the allegation of the prosecution that,

because of persistent harassment by the accused both

physical and mental, she was brought back from her

husband's house. During that time, it is stated that accused

came to the complainant's village and requested to send her

with him. But, they refused and requested him to bring his

father Sidramappa. Thereafter, Sidramappa came and took

deceased to his house. It is the case of the prosecution that,

this accused tried to kill the deceased by pouring kerosene

and setting fire on her. At that time, said Sidramappa

rescued his daughter-in-law and brought the deceased to the

house of complainant. Even thereafter, accused came to

complainant's village twice and requested to send his wife

him. But, there was refusal. These facts have been spoken to

by the complainant and other relations of the deceased

during the course of their evidence. There is no denial of all

these facts in a proper manner by the accused.

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26. So far as incident is concerned, PW.1 specifically

states in his complaint that, on 5.10.2014 at about 9.00 pm.

Accused came to Dornalli village to the house of the

complainant. There was a request to take dinner, he told

that, he had already had his dinner at Yadgir. It has come in

the evidence of PW.1 that, about 10.00 pm on 5.10.2014

accused and his wife Basamma went upstairs to sleep. At

about 3.30 a.m., accused woke up his wife and requested her

to accompany him to answer the natures call. He further says

that in between 3 to 4 am on that day in the play ground of a

school in the guise of taking his sister to answer the natures

call, he has stabbed her on her stomach and killed her. He

came to know about murder of his sister from one Bhimavva.

Accordingly, he lodged a complaint.

27. According to his evidence, after filing complaint

police came to the scene of offence. He showed the scene of

offence. Police prepared the panchama as per Ex.P.2 in the

presence of panchas, seized MOs.1 to 4. He also says that, in

his presence MOs.5 to 7 are also seized. Though this PW.1

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has been directed with severe and searching cross-

examination but he has withstood the test of cross-

examination. It has come in the evidence of PW.1 that, when

accused came to the house of complainant, all were in the

house. Marthi Kolkuru is the resident of Kolkur Village. Even

CWs.7 and 8 had been to their house to celebrate festival.

The festival was about one week ahead. Taking adventage of

this evidence, the learned counsel for the accused submits

that, the possibility of presence of Maruthi and CWs.7 and 8

in the house of the complainant on that day cannot be

accepted as the festival was one week ahead. It is usual

practice in the villages that, whenever festivals are there, the

relations, friends come to the villages to celebrate the

festival well in advance. Still this practice of coming to the

villages well in advance is prevailing in the villages especially

in north Karnataka. Therefore, the argument of the counsel

for the accused cannot be accepted.

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28. From the evidence of PW.1, it is proved that he

showed the scene of offence and police conducted the

panchamana as per Ex.P.2.

29. PW.2 Hanumanth is another pancha to Ex.P.2, so

also inquest pancha to Ex.P.10. There is no effective cross-

examination directed to PW.2 to disbelieve his evidence

about his presence at the time of preparing the scene

panchanama and inquest panchanama. Coupled with that, we

have the evidence of Investigating Officer i.e., PW.19

Jayappa Namedoor. There is no denial of conducting of the

panchanama by him. It has come in the evidence of PW.2

that he also has showed the scene of offence to the police.

So from the evidence of PWs.1, 2 and 19 coupled with other

evidence so placed on record, the scene of offence

panchanama is duly proved in accordance with law.

30. PW.1 has spoken before the court about ill-

treatment and harassment to the deceased by the accused.

So also he has spoken before the court about suspecting of

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fidelity of deceased by accused. This evidence of PW.1 is

corroborated by evidence of PW.4 - Sharanamma being the

mother of the deceased. She corroborates the evidence of

PW.1 in material particulars and also speaks that, at about

4.00 a.m. in the morning on the ill-fated day, accused took

the deceased to the school compound to answer the second

nature call and assaulted her with knife and killed her. She

too has been thoroughly cross-examined but she has

withstood the test of cross-examination.

31. Likewise we have the evidence of PW.5 -

Survana, PW.6- Maruthi Girimallappa, PW.7-Mallappa being

the brother of the deceased. These three witnesses have

spoken before the Court stating that, in the morning hours

on that day, accused awakened his wife Basamma and took

her with him to answer the second nature call and there he

assaulted her with knife and killed her. PW.4 Sharanamma is

the mother and she is the best person to say about the

welfare of her daughter. It is quite natural that, always the

daughters share the important information with regard their

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life with their mother or sister. PW.4 being the mother has

stated so and this fact is corroborated by her sister Suvarna.

32. PW.8 - Lingappa S/o Yamnuappa is the resident

of Dornahalli. He states that on 06.10.2014 at about 4.00

a.m. in the morning hours he had been to answer his second

nature call near Ambekdar School Compound. At that time,

he noticed accused and his wife Basamma shouting with each

other. He ran away to the said place. He noticed that accused

by using knife assaulted on the waist of the deceased killed

her and ran away. She fell down. Thereafter, he informed the

same to the family members of Basamma. They came there.

By that time Basamma was no more. He specifically states

that accused assaulted Basamma on her waist by using MO.8

knife and killed her.

33. It is elicited in the cross-examination that PW.8 is

not his relative. It is elicited that, when he was moving to

attend the natures call, he did not meet Bhimawwa. Further

he states that he also noticed the presence of Aiyyappa and

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Basamma but did not speak to them. The other neighbours

were far away who had gone to attend the natures call. Both

accused and Basamma were found standing very near to

each other. Accused assaulted Basamma from her front on

her waist. He noticed such a assault from a distance of 15-20

feet. When he went near accused, the accused ran away

from the said spot. Therefore, this PW.8 ran towards the

house of complainant and informed them. It is elicited that,

PW.8 sleeps at 9.00 p.m. and wakes up at 3.00 a.m. There is

further denial of his evidence by the defense. It is our

experience that the farmers in the villagers have got a habit

of sleeping early and raising early. This PW.8 has given

consistent evidence about assault of Basamma by accused.

34. PW.9 Sidramappa is none else than the father of

the accused. Evidently, he is not an eyewitness to the said

incident. He has turned hostile. Nothing is elicited from his

mouth. So therefore, no evidentiary value can be attached to

the evidence of PW.9.

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35. PW.10 Sangamma is another sister of PW.1 and

deceased and speaks on par with the evidence of her sister

Suvarna and she identifies the photographs marked at Ex.P.3

to P.9. She speaks with regard to the nature of injuries

sustained by deceased. She speaks that it is accused in the

night took his wife for sleeping and thereafter on the early

hours of the next day took her to attending the second

nature call and killed her. Though intensive cross-

examination is directed to her but she has withstood the test

of cross-examination.

36. PW.11 Dr.Jagidsh the Medical Officer conducted

the Post mortem on the deceased and issued Ex.,P.19. The

contents of the same are not denied by the defense.

According to him, because of assault on her by knife she

died. Though it is argued that there is difference of time and

there was a time gap, therefore, deceased must have died

prior to mid knight. But no such evidence has been brought

on record in the cross-examination directed to PW.11. The

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cause of death has been spoken by this Doctor and it is duly

proved in accordance with law.

37. PW.12 -Ramesh Kashappe Aloor, the Vice

Principal of District Training Centre has come before the

court and he has issued Ex.P.10. He has written the

panchanama at Ex.P.10. There is no denial of this fact in the

cross-examination. So his evidence is to be believed to the

extent that he has prepared Ex.P.10.

38. PW.13 - Smt.Bhimawwa is branded as another

eyewitness who is resident of Dornalli Village. According to

her evidence, she has seen accused assaulting deceased by

using knife. She is consistent in her evidence about she

witnessing the said incident. It is elicited from the mouth of

this PW.13 in the cross-examination that when she went near

the dead body of Basamma accused was not there. She has

noticed the presence of other persons at the spot. From the

evidence of PW.13, it cannot be stated that she is an

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eyewitness to the said incident but arrived at the scene of

offence only after death of deceased Basamma.

39. PW.14- Arunkumar is the nephew of deceased.

He is the scribe of complaint. He also speak that there was

an attempt to kill the deceased Basammma by the accused

by pouring kerosene on her. He informed the same to his

parents. As he is not an eyewitness to the incident but was

present when the accused came to the house of the

complainant and also has noticed accused taking his wife to

the upstairs at 10.00 p.m. Though he has been cross-

examined but nothing is elicited to disbelieve his version

given in his examination in chief.

40. PW.15- Bhoju Nuru Nayak, the then Head

Constable carried the FIR Ex.P.19 to the jurisdiction

Magistrate. There is no effective cross-examined directed to

him. To the extent of carrying FIR as stated by him, we

believe his evidence.

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41. PW.16 - Mahipalreddy was, the then Police

Constable submitted a report as per Ex.P.21 when he carried

the seized articles for scientific examination. Except the

denial nothing is elicited. So Ex.P.21 is proved in this case.

42. PW.17 - Merazul Shaikh was the then Junior

Engineer and he has issued Ex.P.22 the sketch of the scene

of occurrence. The contents of Ex.P.22 are not denied by the

defense in proper manner. So from the evidence of PW.17

Ex.P.22's contents are duly proved in accordance with law.

43. PW.18 - Jagannath was the Head Constable and

a scribe to panchanama and recorded the statement of the

witnesses. Except the denial nothing is elicited from the

mouth of this evidence.

44. PW.20 - Assistant Sub Inspector by name

Hemavathi and according to her evidence she accompanied

the IO to Dornalli and thereafter inquest panchanama was

conducted on the deceased and dead body was sent for post

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mortem. There is no denial of this fact in the cross-

examination. To the extent of accompanying Investigating

Officer the evidence of PW.20 is to be accepted.

45. PW.22 - Shivaraya was the ASI at the relevant

time. According to his evidence, on 06.10.2014 as per the

direction of his Investigating Officer, he apprehended the

accused at 1.00 a.m. and produced him before the

Investigating Officer at 3.00 a.m. along with his report at

Ex.P.26. This apprehension and production of accused by this

witness is not denied by the defense.

46. PW.22-Venkanna was the Panchayat

Development Officer who issued a report as per Ex.P.28 and

E.xP.29 to show that, there was supply of electricity at the

scene of offence from 6.00 p.m.to 6.00 a.m. on the day of

incident and electric bulb was burning at that time. This fact

is not denied by the defense. So the contents of these

documents are proved by the defense.

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47. So far as recovery of knife alleged to have been

used by the accused in the commission of the crime, we have

the evidence of PW.2-Hanumanth S/o Saibanna. According to

his evidence on arrest of accused, he gave voluntary

statement to the police and at his instance he took the police

with himself with another pancha on 17.10.2014 and he led

the police and produced knife. The said knife was seized by

the police under Ex.P.13. He identifies the same. So also he

has produced his blood stained shirt and pant under Ex.P14.

Knife is marked at M.O.8 and pant and shirt are marked at

MOs.11 and 12. These Material objects are seized at the

instance of the accused.

48. On perusal of the voluntary statement of accused

and the seizure panchanamas, so also photographs with

regard to the seizure of the knife, they do demonstrate that,

at the instance of the accused person, these material objects

are seized by the Investigating Officer. To that effect PW.19

the Investigating Officer has stated in his evidence about

seizure of these MOs. Ex.P.27 is the voluntary statement of

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accused wherein the portion of the same so marked shows

that, at the instance of accused the MOs are seized. The said

portion reads as under :-

"£Á£ÀÄ D ¸ÀªÀÄAiÀÄzÀ°è GlÄÖPÉÆAqÀ §mÉÖ ºÁUÀÄ ZÁPÀĪÀ£ÀÄß vÉÆÃj¸ÀÄvÉÛãÉ. FUÀ £À£Àß ªÉÄʪÉÄÃ¯É EgÀĪÀ §mÉÖU¼ À ÀÄ D ¸ÀªÀÄAiÀÄzÀ°Aè iÉÄà GlÖ §mÉÖU½ À gÀÄvÀª Û .É ºÁUÀÄ £Á£ÀÄ §aÑlÖ ZÁPÀĪÀ£ÀÄß £À£U À É PÀgz É PÀ ÉÆAqÀÄ ºÉÆÃzÀgÉ ¸Àé R¶¬ÄAzÀ ºÁdgÀ ¥Àr¸ÀÄvÉÛÃ£É £Àq¬ É Äj CAvÀ £À£Àß ¸Àé RĶ ºÉýPÉ EgÀvz ÀÛ .É "

49. On reading of the said admission of accused

marked at Ex.P.27 being the portion of his voluntary

statement, it is admissible under Section 27 of the Indian

Evidence Act. So to say the recovery of material objects

stated supra, is at the instance of accused and has covered

the ingredients of Section 27 leading to discovery. Therefore,

from the evidence of PW.19 and seizure panchas and the

other evidence so placed on record by the prosecution, the

seizure of material objects stated supra at the instance of the

accused is duly proved in accordance with law.

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50. The motive behind the offence is suspecting the

fidelity of deceased by the accused. It has come in the

evidence that, after one and half month of marriage, accused

started suspecting the chastity/fidelity of deceased. He

started harassing her, beating her. This fact was informed by

deceased to her parents, her sisters and brothers. There was

an advise by them to lead a happy marital life. Because of

the persistent harassment by the accused, the parents of

deceased brought back the deceased to their house. The

accused came to the house of parents of the deceased,

requested them to send his wife. They refused. They asked

the accused to bring their father. Accordingly their father

Sidramappa came and took his daughter in law. It has come

in the evidence of the witness that at that, time also there

was an attempt to cause murder of the deceased by the

accused by pouring kerosene on her and setting fire. It has

come in the evidence that, at that time, his father

Sidramappa rescued his daughter-in-law from the hands of

the accused and brought his daughter-in-law to her parents

house. Even thereafter twice accused came to the parental

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house of the deceased and requested to send his wife but

had not sent. But on 05.10.2014 accused came to the

parents house of deceased at 9.00 p.m. in a drunken

condition. Though asked to have the dinner, refused and at

10.00 p.m. took his wife to the upstairs and thereafter at

3.00 a.m. awakened his wife on the guise of accompanying

him to answer the second natures call and there by using MO

No.8 knife assaulted her and killed her.

51. The events that have been narrated above show

the mens rea of the accused. He made preparations and

came to the parental house of the deceased on 05.10.2014

with a knife M.O.No.8 with an intention to kill his wife. So the

conduct of the accused show that he was having ill-will

against his wife and the evidence so spoken to by the

witnesses that he was suspecting her fidelity is supported by

his own conduct. Recovery of M.O.No.8 and his blood stained

clothes was at the instance of the accused and it is duly

proved.

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52. The learned counsel for the appellant/accused

relied upon following judgments :-

• 1981 Crl. Law Journal 484 (SC) - Ram Ashrit and others v. State of Bhiar;

• 2001 Crl.L.J 1707 - Sohan and another v. The State of Haryana and another;

• 1971 CAR 247 (SC) - Yudhishtir v. The State of Madhya Pradesh;

• 2002 (3) Crimes 82 (SC) - Toran Soingh v. State of Madhya Pradesh;

• 2002 (3) Crimes, 104 (SC) - Thangavelu v. State of Tamil Nadu;

• (2006) 1 UC 270 - Gwanu v. State ofUttarakhand;

• 2002 Crl.L.J 987 (SC) - State of Haryana v. Ram Singh;

• 2017 SAR (Criminal) 8 (SC) - Mahavir Singh v. State of Madhya Pradesh;

• 2016 SAR (Criminal) 166 (SC) - Mangu Singh v. Dharmendra and another;

• 1983 CAR 135 (SC) - Kora Ghasi v. State of Orissa (SC);

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• 1977 Crl.L.J 1144 (SC) - Narsinbhai Haribhai Prajapati etc. v. Chhatrasinh and others; and

• AIR 1957 S.C. 637 - Sarwan Singh Rattan Singh v. State of Punjab.

and submit that the witnesses so examined in this case are

all relatives and therefore their evidence cannot be accepted.

It is settled principles of law that evidence of the interested

witnesses have to be securitized in a proper manner.

53. The judgments relied upon by the counsel for the

accused/appellant speak with regard to the appreciation of

the evidence of interested witnesses. They lay down the

testimony of interested witnesses need to be scrutinized with

utmost care. It is laid down that such evidence can be relied

upon if the evidence has ring of truth to it, is cogent, credible

and trustworthy. A contradicted testimony of an interested

witness cannot be usually treated as conclusive.

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54. It is true that in the criminal jurisprudence, an

accused is presumed to be innocent till he is convicted by a

competent court after a full fledged trial.

55. On the other hand, the learned SPP also relied

upon aforesaid judgments which speak of appreciation of

evidence and other aspects.

56. On considering the entire evidence of all the

witnesses in this case, we find a natural evidence of

independent witness by name PW.8-Ningappa S/o

Yanumappa being the eyewitness, clinicingly establishes

about the commission of the offence by the accused and

accused alone. His presence at the scene of offence is not

denied by the defense in the cross-examination. The other

witnesses - the inmates of the house of the complainant. It is

a most natural aspect that all were in the said house to

celebrate the festival. That means when there is a festival,

the presence of all the relatives in the house of the

complainant is quite natural. There is no reason for all these

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witnesses to falsely implicate the accused. No such

circumstances have been brought on record in the evidence

of the any of the witnesses that they have falsely implicated

the accused. There is no proposition of law that, the evidence

of the related witnesses is not worthy of credit. On the other

hand, the facts brought in the evidence indicate, that the

witnesses so examined in this case are the natural witnesses.

The plain and simplistic manner in which all the witnesses

have narrated the incident without any improvement or

embellishment manifest a ring of truth in their evidence.

They had no reason to depose against the accused, but for

the fact that PW.8- Ningappa was the eyewitness to the

incident leading to the death of the deceased. All the

witnesses have spoken about the conduct of the accused of

suspecting the fidelity of deceased and there was an attempt

to kill her by pouring kerosene and setting fire.

57. In the light of those circumstances, we do not

find any reason to differ with the view taken by the Trial

Court accepting the evidence of the prosecution as truthful

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and reliable. Even on re-appreciation of evidence we do not

find any error or infirmity in the findings recorded in the

impugned judgment holding the accused guilty of murder of

his wife. In the result, the appeal so filed by the appellant

lacks merit and is liable to be dismissed.

58. Coming to the sentence so imposed by the Trial

Court. The learned Trial Court has sentenced the accused for

the offence under Section 302 of IPC to undergo life

imprisonment and a fine of `5,000/- with default sentence.

The accused has committed the murder of his own wife. The

learned Trial Court while hearing the accused on the question

of sentence has held that this case does not fall under 'rarest

of rare case' so as to invoke capital punishment. Accused was

aged 24 years when the offence was committed by him.

There is no other mitigating circumstances submitted and

hence prescribed sentence under the penal law to be levied

against accused. A grave offence has been committed by the

accused being a heinous offence of murdering of his own wife.

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Therefore, the sentence so passed by the learned Trial Court

is proper and the same is to be affirmed.

59. For the reasons stated above, we proceed to pass

the following :

ORDER

The appeal filed by the appellant/accused under

Section 374(2) of Cr.P.C is dismissed.

The order of conviction and sentence passed by the

learned Sessions Judge, Yadgiri in Sessions Case No.14/2015

dated 13.11.2018 against the appellant/accused for the

offence punishable under Section 302 of IPC is affirmed.

Send back the Trial Court records along with the copy

of this judgment.

SD/-

JUDGE

SD/-

JUDGE sk/sn