Karnataka High Court
Sri Nagaraja Naika vs State Of Karnataka on 9 January, 2024
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CRL.A No.1691/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1691/2017(C)
BETWEEN:
SRI NAGARAJA NAIKA
SON OF KRISHNA NAIKA @ LULYA NAIKA
AGED ABOUT 45 YEARS
CHIKKA TEKALAVATTY MAJURE
KEREMUNDALAHATTY VILLAGE
HOSADURGA TALUK. ...APPELLANT
(BY SRI SOMASHEKHARA HARVI, AMICUS CURIAE)
AND:
STATE OF KARNATAKA
BY SRIRAMPURA POLICE STATION
CHITRADURGA DISTRICT
REPRESENTED BY STATE PUBLIC PROSECUTOR
Digitally signed HIGH COURT OF KARNATAKA
by PRABHU BENGALURU - 560 001. ...RESPONDENT
KUMARA NAIKA
Location: High (BY SRI VIJAYAKUMAR MAJAGE, S.P.P.II)
Court of
Karnataka
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 24.06.2017 AND SENTENCE DATED 28.06.2017 PASSED BY
THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, IN
S.C. NO.50/2014, CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF THE IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS
DAY, K. S. MUDAGAL J., DELIVERED THE FOLLOWING:
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CRL.A No.1691/2017
JUDGMENT
Challenging the order of his conviction and sentence, the
accused in Sessions Case No.50/2014 on the file of the
Principal District and Sessions Judge, Chitradurga, has
preferred this appeal.
2. The appellant was prosecuted in Sessions Case
No.50/2014 before the trial Court on the basis of the charge-
sheet filed by Srirampura Police in Crime No.26/2014 of their
Police Station for the offence punishable under Section 302 of
the Indian Penal Code, 1860 (for short, 'IPC'). Crime
No.26/2014 was registered as per Ex.P17, against the appellant
on the basis of the complaint as per Ex.P1 filed by PW1-
Kumara. For the sake of convenience, the parties are referred
to henceforth as per their ranks before the trial Court.
3. Case of the prosecution in brief is as follows:
PWs.1, 4 and 5 are the brother, sister and daughter
respectively of the deceased-Kenchamma. Kenchamma was
married to Ningappa. Out of the said wedlock, they have a son
and a daughter. Ningappa died an accidental death about 10-
12 years prior to February-2014. After his death, Kenchamma
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lived 2-3 years at Sujikallu Village, Hosadurga Taluk, and then
shifted to her parental house in Doddaiahana Palya, along with
her children. About 5-6 years prior to the offence in the case,
the accused and Kenchamma developed relationship.
Thereafter, leaving the children in her sister's house,
Kenchamma started to reside in the house of the accused at
Keremundalahatty Village. The accused suspecting the fidelity
of Kenchamma used to come home drunk and assault her
everyday. Due to that, Kenchamma went back to her parental
house and stayed there. The accused went there, assaulted her
and forcibly took her back to his house. On 10-02-2014 in the
afternoon, in a drunken state, he chased Kenchamma and
assaulted her without allowing the villagers to come to her
rescue. During intervening night of 11/12.02.2014, the accused
committed murder of Kenchamma by assaulting her with MO.1-
arecanut spatula and escaped from the house.
4. On receiving the information, PW1 filed complaint
as per Ex.P1 before PW15 the then Police Sub-Inspector of
Srirampura Police Station, Chitradurga. Based on that, he
registered an F.I.R. as per Ex.P17 in Crime No.26 of 2014
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against the accused. On conducting the investigation, PW.18
CPI filed the charge-sheet.
5. The trial Court on hearing the accused, framed the
charge against him for the offence punishable under Section
302 of the IPC. The accused denied the charge and claimed to
be tried. In support of the case of the prosecution, PW1 to
PW18 were examined, Exs.P1 to P19 and MOs.1 and 2 were
marked. After his examination under Section 313 of the Code
of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), the accused
neither filed defence statement nor led defence evidence.
However, Ex.D1 was marked by way of confrontation.
6. The trial Court on hearing the parties, by the
impugned judgment and order held that charge brought against
the accused was proved beyond reasonable doubt by the
evidence adduced by the prosecution. Therefore, the trial Court
by the impugned judgment and order convicted the accused for
the offence punishable under Section 302 of the IPC and
sentenced him to imprisonment for life, i.e. till his death and
fine of Rs.10,000/-. In default to pay the fine amount, the
accused was directed to undergo simple imprisonment for a
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period of three months. The accused has challenged the said
judgment and order in the above appeal.
Submission of Sri Somashekhara Harvi, learned Amicus Curiae
for the appellant-accused:
7. There are no eyewitnesses to the incident. The case
was based on circumstantial evidence. The prosecution was
required to prove all the circumstances set up by it, leading to
the hypothesis of the guilt of the accused. The cause of the
death was inconclusive. Material witnesses in the case were
relatives of the deceased, so they are interested witnesses. The
charge was not proved beyond reasonable doubt. Hence, the
impugned order of conviction and sentence is unsustainable.
The trial Court committed error in expanding life imprisonment
till the death of the accused. Therefore, the impugned
judgment is liable to be set aside.
Submission of Sri Vijayakumar Majage, learned State Public
Prosecutor-II for the respondent-State:
8. Merely because PWs.1, 4 and 5 are the relatives of
the victim, they cannot be branded as interested witnesses.
Their evidence shows that the victim got into a relationship
with the accused. PWs.6 to 8 are the independent witnesses.
Nothing was elicited in their cross-examination to show that
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they are interested witnesses. The fact that the accused and
the deceased were in a live-in relationship and residing in the
house of the accused was established. The fact that the death
was homicidal was proved by the evidence of PW14. The
accused failed to explain the same as required under Section
106 of the Indian Evidence Act, 1872 (for short, 'Evidence
Act'). The trial Court considering all the facts and circumstances
of the case held that the circumstances set up by the
prosecution are proved beyond reasonable doubt. The
impugned judgment and order of conviction and sentence does
not warrant any interference.
9. On considering the submissions of both side and
material on record, the questions that arise for the Court's
consideration are:
i) Whether the impugned judgment and order of
conviction is sustainable?
ii) Whether the impugned order of sentence is
sustainable ?
Analysis
Reg. Point No.1:
10. The relationship between PWs.1,4,5 and the deceased
was not disputed. It was also not disputed that the victim
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Kenchamma was married to one Ningappa of Sujikallu village
about 20 years prior to the incident and he died about 10-12
years prior to the incident by drowning. It was also not
disputed that after the death of Ningappa, the victim lived with
her children in Sujikalllu village for about 2-3 years and
thereafter she had shifted to her parental house in Doddaiahna
Palya along with her children and she was vending flowers in
the said village.
11. There were no eyewitnesses to the incident. The
case of the prosecution is based on the circumstantial evidence.
The prosecution to bring home the guilt of the accused relied
on the following circumstances:
(i) That the accused and the deceased were in live-in
relationship and they were living together in the house of the
accused in Keremundalahatty within the limits of Srirampura
Police Station;
(ii) Motive: That the accused suspecting the fidelity of
Kenchamma subjected her to physical cruelty and soon before
her death, he was found assaulting her;
(iii) Kenchamma died homicidal death in the house of
the accused;
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(iv) Conduct of the accused: Accused absconding from
the scene of offence soon after the incident and his failure to
explain the unnatural death as required under Section 106 of
the Indian Evidence Act.
Reg. Motive and relationship of the accused and the deceased:
12. PW.1 the brother, PW.4 the sister and PW.5 the
daughter of the deceased categorically deposed about the
deceased being a widow having children and she developing a
relationship with the accused, shifting to Keremundalahatty and
living with the accused in his house in the said village. They
also deposed about the victim leaving the children in her
parental house. Similarly, PWs.6 to 8 the residents of
Keremundalahatty village and neighbors of the deceased and
the accused, categorically deposed that accused and the
deceased were living in their village in the house of the accused
as husband and wife.
13. In the cross-examination of the aforesaid witnesses,
the accused and the deceased cohabiting with each other in the
house of the accused was not disputed. To prove that the death
had taken place in the house of the accused, the prosecution
relied on the evidence of PW.9 PDO of Doddathekalavatti village
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and Ex.P5 the House List register extract. PW.9 deposed that
Keremundalahatty comes within Doddathekalavatti
Grampanchayat limits and on the requisition of the
Investigating Officer he issued Ex.P5 the House List register
relating to the said house.
14. Ex.P5 the House List register shows that the scene
of offence was bearing Door No.305. In the said document, the
accused was shown as khathedar and the possessor of the said
property. PW.9 was not cross-examined to dispute the
correctness of Ex.P5. By such evidence of PWs.1 and 4 to 9, the
prosecution case that the accused developed relationship with
the deceased about 5 to 6 years prior to the incident and lived
with her in his house in Keremundalahatty village was proved
beyond reasonable doubt.
15. Then the next question is whether the prosecution
proved the motive for the offence, namely accused harassing
the victim suspecting her fidelity. Even on that aspect in the
complaint Ex.P1 and in the evidence of PWs.1,4 and 5, it is
categorically stated that the accused suspecting fidelity of the
victim used to pick up quarrel with her and assault her. PW.1
also stated that being fed up by that, about 15 days prior to
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her death the victim came to his house and stayed in his house,
accused also came there, picked up quarrel with her, assaulted
her and took her back to his house. PWs.1, 4 and 5 also
deposed that they had advised the accused several times to
mend his ways, but he had not changed. They also deposed
that two days after the accused taking the victim to his house,
they received the information about accused committing her
murder and they went to his house to find the victim dead with
homicidal injuries.
16. PWs.6 to 8 the residents of Keremundalahatty
village deposed that about two days prior to her death, the
accused assaulted the victim by chasing her in their village and
when they tried to intervene, the accused dragged her into his
house. PW.7 deposed that when she tried to intervene, the
accused told them that the victim is his wife and they cannot
question he beating her and he even prevented them from
giving water to the victim. PW.8 also speaks about he
witnessing the accused, harassing the victim and they advising
the accused to mend his ways. He also states that he witnessed
the incident between the accused and the victim. After that
incident, the accused was not found in the village and he
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informed the police about the death. Absolutely nothing is
elicited in the cross-examination of PWs.6 to 9 to demonstrate
that they had any animosity or ill-will against the accused to
falsely implicate him or that his implication in the case enures
any benefit to them. Therefore, they cannot be called as
interested witnesses. Similarly, merely because they were
related to the deceased, PWs.1,4 and 5 cannot be labeled as
the interested witnesses, unless it is shown that the implication
of the accused in the case enures any benefit to them. The
accused also did not dispute that after the death of the victim
he was not found in the village. By the aforesaid evidence the
prosecution proved the relationship between the deceased and
the accused, the motive circumstance and place of offence.
Reg. Nature of death and Section 106 of Evidence Act:
17. To prove that the death was a homicidal one, the
prosecution relied on the evidence of PW.14 who conducted the
postmortem examination on the dead body, Ex.P15 the P.M
report and Ex.P16 the opinion regarding cause of the death.
18. Exs.P15 and 16 and the evidence of PW.14 show
that the victim had suffered following external injuries:
(i) Abrasion on right side of chin measuring 3 cm.
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(ii) Abrasion on right shoulder measuring 5 cm.
(iii) Abrasion on right breast measuring 6 cm each 2 in
number.
(iv) Abrasion on inner aspect of left thigh region
measuring 5 x 2 cm.
(v) Abrasion on inner aspect of right thigh region
measuring 3 cm.
(vi) Abrasion on right knee part measuring 4 x 2 cm.
(vii) Abrasion on left knee part measuring 2 cm.
Thus in all there were seven external injures on the dead
body.
19. PW.14 further states that the victim had bite mark
on the right eye and she had suffered fracture of frontal bone
and brain was damaged etc. She states that all the aforesaid
injuries were antemortal in nature and they could be caused if
the victim was assaulted by club. She also deposed that she
examined M.O.1 submitted by the Investigating Officer and
issued her opinion as per Ex.P16 stating that the injuries
mentioned in Ex.P15 could be caused by MO.1. As per Ex.P16
the opinion as to the cause of death, it is concluded that the
death is due to injury to vital organ, the brain the frontal lobe
and fracture of frontal bone and such fracture could be caused
by M.O.1.
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20. In the cross-examination of PW.14 it was suggested
that such injuries could be caused if the person fell on sharp
edged stone. Such theory of accidental injuries was not
suggested to any other witnesses. The accused himself in the
examination under Section 313 Cr.PC did not put forth the
theory of accidental injuries. Except the accused and deceased,
there was none else at the scene of offence during the incident.
If the victim really had suffered accidental injuries, the accused
should have first attended to her or informed others about such
accidental injuries which he did not do. The way he absconded
from the place becomes relevant under Section 8 illustration
(h) of Evidence Act and demonstrates that he had role in
inflicting the injuries and the death.
21. Learned Counsel for the appellant/accused relying
on the confessional statement of the accused under Section 25
of the Evidence Act argued that, as per the said statement both
accused and the deceased were drunk and he hit her in a rage
of quarrel between them. Therefore, it cannot be said that he
had any intention to commit her murder. He contends that
even assuming that the accused was author of the injuries,
motive or knowledge of committing murder is not attracted and
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the offence falls under Section 304 part II of IPC. First of all, he
has not taken up such defence during trial. Though the
confessional statement formed part of the charge sheet, only
the admissible portion leading to discovery of incriminating
evidence was marked at Ex.P19.
22. During the course of cross-examination of
Investigating Officer PW.18 also it was not suggested that the
accused and the victim were drunk, had a free fight and
accused also suffered injuries in such fight. Without any such
defence in the cross-examination of the witnesses or under
Section 313 Cr.PC, for the first time it was argued before this
Court that the case falls under Section 85 of IPC. Even to
invoke Section 85 IPC, all the ingredients of the said section
shall be satisfied. Section 85 of IPC reads as follows:
85. Act of a person incapable of judgement by reason of
intoxication caused against his will:
Nothing is an offence which is done by a person
who, at the time of doing it, is, by reason of intoxication,
incapable of knowing the nature of the act, or that he is
doing what is either wrong, or contrary to law; provided
that the thing which intoxicated him was administered
to him without his knowledge or against his will.
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The reading of the above provision shows that the
defence is available only if such intoxication or administration
of intoxicating substance is by some other person or without
the knowledge or against the will of the accused. Secondly, the
intoxication must be of such a magnitude that the accused
must be incapable of knowing the nature of his act. It is not the
case of the accused that somebody administered him alcohol.
Thirdly, on assaulting the victim, he ran away from the place.
Therefore, it cannot be said that the accused was incapable of
knowing the nature of his act due to the intoxication.
Therefore, the said defence or the judgment of the Hon'ble
Supreme Court relied on by the appellant's Counsel in
Yogendra Singh @ Jogendra Singh Vs State Of Rajasthan1 does
not advance the case of the accused.
23. Apart from that, the evidence of PWs.1 and 4 to 8
show that it was not a case of a single assault in provocation
due to intoxication. The evidence shows that all along the
accused was mercilessly assaulting the victim claiming that he
can even kill her as she is his wife. On that count also the
AIR ONLINE 2018 RAJ 647
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contention that there was no motive for the murder or there
was no motive in assaulting the victim deserves no acceptance.
24. Once the prosecution establishes that the death has
taken place in the house of the accused where himself and the
deceased were living together, the same was
unnatural/homicidal one, Section 106 of the Evidence Act
requires him to explain the cause of death. The Hon'ble
Supreme Court in Trimukh Maroti Kirkan Vs State of
Maharasthra2 has held that if an offence takes place inside the
privacy of a house and in such circumstances where the
assailants have all the opportunity to plan and commit the
offence, it would be extremely difficult for the prosecution to
lead evidence to establish the guilt of the accused if the strict
principle of circumstantial evidence, is insisted upon by the
Courts. It was further held that in such case the burden would
be of a comparatively lighter character, in view of Section 106
of the Evidence Act and there will be a corresponding burden
on the accused to give a cogent explanation as to how the
crime was committed in the house. It was held that the inmate
of the house cannot get away by simply keeping quiet and
(2006) 10 SCC 681
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offering no explanation on the supposed premise that the
burden to establish its case lies entirely upon the prosecution
and there is no duty at all on the accused to offer any
explanation. It was further held that the accused has the duty
to offer explanation as to how the death took place and how
the victim suffered injuries.
25. First of all the evidence on record shows that the
prosecution has discharged its burden of proving the
circumstances set up by it beyond reasonable doubt. Secondly,
the accused failed to offer required explanation under Section
106 of the Evidence Act in his examination under Section 313
Cr.PC or by way of defence evidence. The trial Court on sound
appreciation of the evidence on record rightly arrived at the
conclusion that the appellant/accused is guilty of the charge
under Section 302 of IPC. The same does not warrant
interference of this Court.
Reg. Point No.2:
26. The trial Court by the impugned order has
sentenced the accused to imprisonment for life i.e., till his
death. Section 53 of IPC which deals with the punishment,
speaks of only imprisonment for life.
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27. The reading of Section 302 of IPC coupled with
Section 28 Cr.PC shows that the Sessions judge is authorized to
impose the sentence of imprisonment for life or death sentence
and death sentence shall be subject to the confirmation by the
High Court.
28. Interpreting the above provisions in the context of
Sections 432 and 433 of Cr.PC, the Hon'ble Supreme Court in
Ravinder Singh Vs State of Govt. Of NCT of Delhi3 held that
only High Court or Supreme Court have the power to take
recourse to special category of sentencing other than the one
prescribed under Section 302 IPC. The Hon'ble Supreme Court
held that the Sessions Judge has no power to impose sentence
of life extending the same until death or twenty years etc.,
therefore the appeal succeeds only to that extent. Hence, the
following:
ORDER
The appeal is partly allowed.
The impugned judgment and order of conviction for the
charge for the offence punishable under Section 302 of IPC is
confirmed.
AIR 2023 SCC 2220
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The impugned order of sentence is modified as follows:
For the offence under Section 302 of IPC the
appellant/accused is sentenced to imprisonment for life and fine
of Rs.10,000/-. In default to pay fine, he shall undergo simple
imprisonment for three months.
The order of trial Court with regard to disposal of the
property and set off under Section 428 of Cr.PC are maintained.
The Court places on record its appreciation for the able
assistance rendered by Sri Somashekhara Harvi, learned
Amicus-Curiae. Registry shall pay the admissible remuneration
to him.
Sd/-
JUDGE
Sd/-
JUDGE
KVK/PKN
