Karnataka High Court
Jenukurubara Raju vs State Of Karnataka on 20 November, 2023
Bench: Sreenivas Harish Kumar, Venkatesh Naik T
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CRL.A No. 481 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 481 OF 2018
Between:
Jenukurubara Raju,
S/o. Late Mari,
Aged about 58 years,
R/at Balengad, Begoor Village,
Ponnampet, Virajpet Taluk,
Kodagu District.
...Appellant
(By Sri Venkatesh P.Dalwai, Advocate)
And:
Digitally signed by State of Karnataka
VEERENDRA By Gonikoppa Circle Police Station,
KUMAR K M
Location: HIGH Represented by Public Prosecutor
COURT OF High Court of Karnataka
KARNATAKA
Bengaluru.
...Respondent
(By Sri Vinay Mahadevaiah, HCGP)
This Criminal Appeal is filed under section 374(2) Cr.P.C.,
Praying to set aside the judgment and order of conviction dated
12.10.2017 and sentence dated 13.10.2017 passed by the II
Additional District and Sessions Judge, Kodagu-Madikeri, sitting
at Virajpet in S.C.No.03/2015-convicting the appellant/accused
for the offence punishable under sections 302, 201 and 377 of
IPC.
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This Criminal Appeal, coming on for hearing, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
The accused in S.C.No.3/2015 has preferred
this appeal challenging the judgment of conviction
dated 12.10.2017 passed by the II Additional
District and Sessions Judge, Kodagu-Madikeri,
sitting at Virajpet.
2. The trial court having found the accused
guilty of the offences punishable under Sections
302, 377 and 201 of IPC, sentenced him to
rigorous imprisonment for life and fine of
Rs.5,000/- with default imprisonment for a period
of 6 months for the offence punishable under
Section 302 of IPC, rigorous imprisonment for a
period of 4 years and fine of Rs.2,000/- with
default imprisonment for a period of 3 months for
the offence punishable under Section 201 of IPC
and rigorous imprisonment for a period of 7 years
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and fine of Rs.4,000/- with default imprisonment
for a period of 6 months for the offence punishable
under Section 377 of IPC.
3. The background leading to prosecution of
the accused is as follows:
The name of the deceased is Kamala. The
accused and the deceased were living under the
same roof as husband and wife, though they were
not married. On 03.09.2014, there was a festival
called 'Kail Muhurtha' in the village. On that
night, the accused solicited sexual intercourse with
the deceased and as she declined his request, the
accused picked up a quarrel with her, assaulted
with a club and then inserted a bamboo stick into
the vagina of the deceased. This resulted in the
death of Kamala. Thereafter the accused dragged
the dead body to a place nearby his house
where there was a growth of bamboo bushes,
dug a pit and buried the dead body. PW2-Ramesh
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who was a police constable received information
from his informants that dead body was found in a
decomposed state. After receiving the information
he went in the direction from where a stinking
smell was being emitted, saw a partially buried
dead body and then informed the same to PW13,
the Assistant Sub-Inspector of Police of Ponnampet
police station. He registered the FIR. Thereafter
the dead body was exhumed in the presence of
PW10, the Assistant Commissioner. After
investigation was completed, the accused came to
be charge sheeted for the aforesaid offences.
4. The prosecution examined 14 witnesses
as PW1 to PW14, relied upon 25 documents as per
Ex.P1 to P25 and 5 material objects as per MO1 to
MO5.
5. Assessing the evidence of the witnesses,
the trial court has drawn the conclusions that:
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5.1. From the evidence of PW3, PW7 and
PW8, it would get established that the dead body
was that of a female by name Kamala, who was
living with the accused . The dead body was exhumed
by PW10. The police officer who was present at
that time with other witnesses saw a bamboo stick
being inserted into private part of the deceased.
The post mortem report also clearly indicates the
presence of bamboo stick in the vagina. In the
post mortem report, it is mentioned that the death
was as a result of haemorrhage secondary to
lacerated stab injury to the genital region.
5.2. After 03.09.2014, the accused was
not seen in the village and he was arrested on
25.09.2014 at Ponnampet bus stand. This conduct
of the accused is important. If the deceased was
living with the accused and when she was not seen
in the house, the accused himself was required to
give an explanation under Section 106 of the
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Indian Evidence Act and his failure to provide any
explanation would result in a missing link in the
chain of circumstances being provided. Thus seen,
all the circumstances that the prosecution was
supposed to establish would stand proved beyond
reasonable doubt and hence accused could be held
guilty of the offences punishable under Sections
302, 377 and 201 of IPC.
6. We have heard the arguments of Sri
Venkatesh P Dalwai, learned counsel for the
appellant/accused and Sri Vinay Mahadevaiah,
learned High Court Government Pleader for the
respondent/State.
7. Upon re-appreciation of the evidence we
find that the case is based on circumstantial
evidence and mainly the prosecution was mainly
supposed to prove the following four circumstances.
i) Tracing of dead b ody,
ii) Exhumation and identification of dead body,
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iii) Abscondance/conduct of the accused, &
iv) Disclosures made by the accused.
8. The evidence discloses that PW2 was
deputed on a special intelligence duty to the
village called Beguru. On 17.09.2014, when he
went to that village, the police informers told him
that a dead body was lying in a highly decomposed
condition in the forest of Balangadu. Obtaining
this information, he went in search of the dead
body. At a distance of 25 meters from the house
of accused, he started getting foul smell. As he
went near the bamboo bushes, he saw a partially
buried dead body. Some portion of red saree was
also visible. He also saw that some portion of the
dead body was eaten by the wild animals. Maggots
were present. Seeing the dead body, he returned
to the police station and gave a written report as
per Ex.P7. PW13 was the Assistant Sub-Inspector
of Police at that time. He stated that he received
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the report from PW2 as per Ex.P7 and registered
FIR. Then he sent a requisition to the Sub
Divisional Executive Magistrate i.e., PW10 for
conducting inquest.
9. The evidence of PW10 shows that after
receiving the requisition he went to the place with
police staff and noticed partially buried dead body.
He got the body exhumed. It was in a decomposed
state. Skin was peeled of. Some part of the body
was eaten away by wild animals. He also noticed a
stick pierced in to the genital part of the deceased.
In the said pit he found some packets of grains,
cereals and cosmetics. He conducted inquest as
per Ex.P1. PW1 has also given evidence about
exhuming of dead body by PW10. The evidence to
this extent which is not disputed is sufficient
enough to hold that the dead body was traced.
10. Then arises the question whether the
dead body was that of Kamala, a woman who was
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living with the accused. From the evidence of
PW1, it can be noticed that after exhumation, he
and others who were present at that time came to
know that the dead body was that of the wife of
the accused.
11. The evidence of PW4, PW7 and PW8 is
relevant in this context. Though PW4 turned
hostile partially, his evidence discloses that he
went to the place where the dead body was buried
after coming to know about the news of the death
of Kamala. He stated that Kamala was living with
the accused.
12. PW7 is the sister of the accused. PW8 is
the brother-in-law of the accused, i.e., husband of
PW7. Both of them have stated in the
examination-in-chief itself that the deceased was
the wife of the accused and they both were living
at Beguru village. Though PW7 and PW8 did not
testify the facts which the prosecution wanted to
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prove through them, they unequivocally stated
before the court that deceased was the wife of the
accused. It was argued by Sri Venkatesh P Dalwai
that because the face of the dead body was not
visible as it had been eaten away by the wild
animals, there is no proof that the dead body was
that of a woman who was living with the accused.
By mere fact that a dead body was exhumed at a
place situated near the house of the accused, no
conclusion can be drawn that the dead body was
that of Kamala. This argument was countered by
the learned High Court Government Pleader stating
that since PW1, PW4, PW7 and PW8 stated before
the court that the dead body was that of Kamala
and to this extent their testimony has stood
unimpeached, a clear inference can be drawn that
the prosecution was able to prove the
identification of the dead body.
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13. Evidence shows that the face was not
visible because major portion of the body had been
eaten away by wild animals, and it was in a
decomposed condition. But the testimonies of the
witnesses, PW1, PW4, PW7 and PW8 cannot be
discarded. Their evidence establishes that the
dead body was that of Kamala, who was living with
the accused.
14. PW7 and PW8 have not turned hostile in
regard to death of Kamala. What they have stated
is that they did not come to know the reason for
the death. That means, they did not want to
implicate the accused. Therefore it can be very
well said that the dead body exhumed by PW10 in
the presence of PW1 was that of Kamala, a woman
who was living with the accused till 03.09.2014.
15. There is no denial of the fact that after
03.09.2014, the accused was not seen in the
village. Kail Muhurtha festival was held in the
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village on 03.09.2014. From next day, he was not
seen in the village. The deceased was also not
seen. Accused was arrested on 25.09.2014 at
Ponnampet bus stand.
16. PW12 has stated that on 25.09.2014, he
was assigned with the task of tracing the
accused. He along with police constables,
Manjunath and Harish, went in search of the
accused. After they obtained credible information
that the accused was available at Ponnampet bus
stand, they rushed to that place, arrested the
accused and produced him before PW14, the Circle
Inspector of police. After arrest, he was subjected
to interrogation and at that time, he gave a
confession statement. While giving confession
statement, he stated that he would show the place
where he had thrown the club used for assaulting
the deceased and also the place where he had
buried the dead body. Ex.P19(a), 19(b) and 19(c)
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are the portions of the voluntary statement leading
to disclosures.
17. PW14 has stated that the accused himself
took him and the panchas. First the accused led
them to a place where he had thrown the club and
produced a club-MO4, and it was seized. The fact
of seizure is corroborated by the testimony of
PW6.
18. PW6 was a jeep driver. He stated that he
took the Circle Inspector of Police and three police
constables and also the accused in his jeep. He
has further stated that the police drew up a
mahazar as per Ex.P9 in front of the house of the
accused and at that time, the accused produced a
club-MO4, which he too identified.
19. Ex.P.19(a) is the part of confession
statement based on which PW14 ascertained that it
was the place where the dead body was buried. In
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this regard, Sri Venkatesh P Dalwai, learned
counsel for the appellant/accused argued that this
disclosure made by the accused had no relevance
in the sense that by that time the police already
knew the place where the dead body was buried.
Therefore Ex.P.19(a) is not relevant to draw an
inference about involvement of the accused. This
is not the way how Ex.P19(a) is to be appreciated.
It is a fact that the dead body was exhumed on
17.09.2014 and thereby the police were aware of
that place. By giving a statement as per
Ex.P19(a), if the accused led the police to the
same place, it only confirmed that it was the place
where he had buried the deceased after killing her.
Therefore Ex.P19(a) is confirmatory in nature and
in this way it assumes significance and further
establishes the identity of the deceased as Kamala,
who was living with him. Added to this, under
Ex.P.19(c) he produced a club used by him for
assaulting the deceased. The seizure of club is
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corroborated by PW6. Therefore the discovery of
MO4 and confirmation of the place of burial of
dead body is another circumstance that has been
stood proved.
20. The trial court has applied Section 106 of
the Indian Evidence Act to hold that silence on the
part of the accused would provide a missing link in
the chain of circumstances. We do not find any
infirmity in applying Section 106 of the Evidence
Act.
21. It is undisputed that the deceased was
living with the accused. When she was last seen
with the accused on 03.09.2014, and thereafter
her presence was not seen in the village, it was for
the accused to have explained about the
whereabouts of the deceased. If he offered no
explanation and when the dead body was identified
to be that of Kamala, who was living with him, it
only indicates his involvement in the commission
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of the crime. Thus seen, Section 106 of the Indian
Evidence Act can also be applied. Therefore we
too find that all the circumstances point to the
involvement of the accused in the death of Kamala.
Though the doctor who conducted post mortem
was not examined, the post mortem report as per
Ex.P4 is not disputed. The nature of injuries
sustained by the deceased indicates that she met a
homicidal death.
22. The trial court has held the accused
guilty of the offences punishable under Sections
302 and 377 of IPC. But we are of the opinion that
the accused cannot be held guilty of these two
offences. The reasons are that, from the
testimonies of PW4, PW5, PW7 and PW8, an
inference can be drawn that the accused went to
the extent of inserting a bamboo stick into the
vagina of the deceased as the latter declined the
request of the accused to have sexual intercourse.
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These witnesses turned hostile to some extent and
when the public prosecutor subjected them to
cross examination, the suggestion given to them
was that the accused became angry when the
deceased refused to have sexual intercourse and
therefore thrusted a bamboo stick into the vagina
of the deceased. That means the whole incident
appears to have taken place in a fit of anger
consequent to refusal by the deceased to have
intercourse with the accused. Though the death
was homicidal, in a situation like this, exception 4
to Section 300 of IPC can be applied. The injury
that the deceased sustained as a result of insertion
of sharp edged bamboo stick into the vagina is
sufficient in the ordinary course to cause death.
But it was done without any premeditation, in a
sudden fight and in a heat of passion. The
accused knew the consequences of the act that he
was doing, but it was without any intention. The
evidence of PW14, the investigating officer also
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shows that the accused resorted to inserting a
bamboo stick into the vagina of the deceased when
the latter did not agree for sexual intercourse and
thereby he became angry. In this view, the whole
case can be brought within the ambit of Part-II of
Section 304 of IPC. There is no case for convicting
the accused for the offence punishable under
Section 302 of IPC.
23. In order to hold the accused guilty of the
offence under Section 377 of IPC, the finding of
the trial court is that the accused inserted the
bamboo stick into the vagina of the deceased to
gratify his sexual desire, which was unnatural. But
the evidence does not indicate that the accused
wanted to gratify his sexual desire in this way.
What the evidence discloses is that the accused
inserted bamboo stick into the vagina of the
deceased having become angry and this resulted in
the death. In these circumstances, the accused
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cannot be held guilty of the offence under Section
377 of IPC. To this extent the finding of the trial
court cannot be sustained.
24. There is convincing evidence that the
accused himself buried the dead body at a place
situated near his house. This shows that he
wanted to cause disappearance of the evidence
and thereby the finding of the trial court that he
can be held guilty of the offence under Section 201
of IPC can be sustained.
25. The accused has been in custody since
25.09.2014, that means he has already spent 9
years of imprisonment and this can be set-off for
the offence under Section 304 part-II of IPC, with
which we have held him guilty.
26. Therefore from the above discussion we
are of the opinion that the judgment of the trial
court is to be modified. Hence the following:
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ORDER
The appeal is partly allowed.
The judgment dated 12.10.2017
passed by the II Additional District and
Sessions Judge, Kodagu-Madikeri sitting at
Virajpet in S.C.No.3/2015 stands modified
in the following manner:
The accused is acquitted of the
offences punishable under Section 377 of
IPC.
He is held guilty of the offence
punishable under Section 304 Part-II of
IPC instead of Section 302 of IPC.
The judgment of the trial court
convicting the accused for the offence
punishable under Section 201 of IPC is
sustained.
For the offence punishable under
Section 304 Part-II of IPC, the accused is
sentenced to rigorous imprisonment for
the period he has already spent in jail
and fine of Rs.5,000/-. In default of
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payment of fine, he shall undergo simple
imprisonment for a period of 6 months.
The sentence of imprisonment and
fine with default imprisonment for the
offence under Section 201 of IPC is
retained.
The sentence of imprisonment for
both the offences shall run concurrently.
The period already spent in jail is
given set-off.
The accused shall be set free if his
presence is not required in any other
case/s.
Send back the trial court records with
a copy of this judgment, forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
KMV
