(Prayer: This Crl.A. is filed u/s.374(2) Cr.P.C praying to set aside the Order Dated:13.6.11 passed by the Addl.SJ and PO, FTC, Hassan in S.C.No.70/08- convicting the Appellant Accused No.1 for the offence P/U/S.498(A) and 302 of IPC and etc.)
1. This appeal is by the convicted appellant/accused against the judgment and order dated 13.6.2011 passed by the Addl. District and Sessions Judge and Fast Track Court, Hassan in S.C.No.70/2008.
2. The appellant/accused is tried and convicted by the Trial Court for the offence punishable under Section 498-A and Section 302 of Indian Penal Code.
3. The case of the prosecution in brief is that deceased Mamatha was the wife of the accused/ appellant herein. The marriage of the accused and deceased Mamatha was performed in the year 1998. For about one year, they lived happily and one year after the marriage, the deceased gave birth to a child named as Usha. Thereafter, the appellant started assaulting and ill-treating the deceased asking her to bring one or the other things from her parents' house. About five years back, the appellant contracted T.B. and at that time, the complainant namely the brother of the deceased looked after the treatment of the appellant. Inspite of that, appellant did not desist from ill-treating the deceased and in this regard, a complaint was lodged in Kadur police station and number of panchayats were also conducted. About two years back, the appellant assaulted the deceased and sent her to her parents house. After mediation once again, she was sent back to the house of the accused. About two months prior to the incident, once again, the accused assaulted and sent her back to the house of the complainant. About one week prior to the incident, the appellant asked the deceased to return to the matrimonial home and when the deceased refused to join the accused, the accused threatened to kill her. Two days thereafter, the father and uncle of appellant came to the house of the complainant and asked the deceased to return to the matrimonial home and when she refused on account of the ill-treatment meted out to her in the matrimonial house, the father and uncle of the accused demanded the deceased to return the gold jewellery and when she refused, they threatened that they know how to take back their jewellery.
4. That being the case, on 22.10.2007, the brother of the deceased, Sri. K.C. Satish PW-1 had been to Arasikere to bring electrical goods and the mother of the deceased Smt. Mallikamma PW-2 had gone to the fair at Banavara; the deceased was alone in the house. At about 1.45 p.m., deceased rang up to the mobile phone of the complainant PW-1 and informed him that appellant had come home and had been threatening to kill her. Immediately, the complainant informed the matter to his mother over phone and both of them rushed to the house and by the time they reached home at about 2.15 p.m., they found the deceased with cut injuries on her head and neck and on enquiry with the neighbours, the complainant was informed that about 2.00 p.m., the appellant picked up quarrel with the deceased and assaulted her with a chopper on her head and neck and went away carrying the chopper with him.
5. On the basis of the complaint lodged by PW-1 K.C. Satish -the brother of the deceased, Banavara police registered a case against the appellant and against his father Gangadharappa and his Uncle Shadakshari for the offences punishable under sections 498-A, 114, 302 Indian Penal Code. After investigation, the Circle Inspector, Arasikere Rural Circle laid the charge-sheet against the appellant and two other accused. The appellant herein was charged for the offence punishable under sections 498-A and Section 302 r/w 34 Indian Penal Code. However, accused Nos.2 and 3 having absconded, a split up case came to be registered against them in C.C.No.238/2008. After their arrest, S.C.No.119/2008 came to be registered against accused Nos.2 and 3. The appellant herein was tried in S.C.No.70/2008. In a joint trial, the learned Sessions Judge recorded the evidence of 20 witnesses as PW-1 to PW-20, received in evidence Exs. P1 to P14 and the material objects at M.Os 1 to 11. Accused got marked Ex-D1 to Ex-D3. Upon hearing the parties, by a common judgment dated 13.6.2011 in S.C.No.70/2008 and S.C.No.119/2008, the Lower Court convicted the appellant herein for the offences punishable under Sections 498-A and 302 Indian Penal Code and sentenced him to undergo RI for one year and a fine of Rs.2,000/- for the offence punishable under section 498-A and life imprisonment and a fine of Rs.2,000/- for the offence punishable under section 302 Indian Penal Code. The accused Nos.2 and 3 however were acquitted of the offences charged against them under Section 302, 498-A, 114 r/w 34 Indian Penal Code.
6. Feeling aggrieved by the impugned judgment of conviction and order of sentence, the appellant has preferred this appeal interalia contending that the trial Judge has erred in convicting the appellant in the absence of any direct evidence. It is contended that there are no eyewitnesses to the incident and PW-3 to PW-6 the neighbours of the complainant have not corroborated the evidence of PWs-1 and 2. The learned Trial Judge also failed to note that PWs-3, 4, 5 and 6 are circumstantial witnesses. Material eyewitness cited by the prosecution viz., one Taslima is not examined by the prosecution, as such, there is no material evidence to prove the charges framed against the accused. There is inconsistency in the evidence of PWs-3 to 6. The learned Judge failed to appreciate the evidence in proper perspective leading to gross miscarriage of justice and hence the appellant has sought to set-aside the impugned judgment of conviction and the order of sentence.
7. Learned Advocates on either sides have argued in support of their cases. Both of them have taken us through the material on record including the judgment of the court below.
8. Before proceeding further, it would be relevant to note the versions of each of the witnesses deposed by them before the Court.
PW.1 K.C. Satish is the brother of the deceased. He is also the complainant. In his evidence, he has spoken about the instances of cruelty meted out to the deceased in the house of the accused and about the various mediation convened to bring out the rapprochement between the accused and the deceased. According to PW- 1, on the date of the incident, he had gone to Arasikere along with his friend Indrajith and at about 1.45 p.m., he received a phone call from the deceased asking him to come home immediately as the accused was threatening to kill her. Accordingly, he rushed back and reached home by 2.00 p.m. By then, his mother also reached home and they found the dead-body of the deceased on the rear portion of their house and on enquiry, he was told by Chowdappa-PW-4, Smt. Nagarathna-PW-5, Taslima and B.V. Thimmappa-PW-6 that the accused assaulted the deceased with chopper and went away carrying the chopper with him. He has identified the said chopper. This witness has deposed about the complaint lodged by him as per Ex-P1.
PW-2 Mallikamma is the mother of the deceased. She has deposed in conformity with the prosecution case regarding the ill-treatment and cruelty meted out to the deceased in her matrimonial home and her reluctance to stay with the accused in the matrimonial home. This witness has reiterated in her evidence that on the date of the incident, on receiving a phone call from her son about the fear expressed by her daughter-Mamatha, she rushed home and found the dead-body of her daughter in the rear portion of the house.
PW-3 Rameezabi, PW-4-Chowdappa, PW-5-Smt. Nagarathna and PW-6 B.V. Thimmappa are the immediate neighbours residing adjacent to the house of PW-2. All these witnesses have deposed before the Court that on hearing the screams, they rushed to the spot of occurrence and found the accused assaulting the deceased with a chopper and thereafter going away taking the chopper with him.
PW-7- B.N. Shekharappa is the scribe of the complaint Ex-P1. According to this witness, once he and Nataraj had tried to bring about reconciliation between the deceased and the accused regarding the ill-treatment given to her by the accused in her matrimonial house.
PW-8 - Rajappa is the maternal uncle of the deceased. According to this witness, when the accused had driven away the deceased from the house, he alongwith Ramegowda, Shankarappa and Devirappa persuaded the deceased to rejoin the accused; inspite of it, the accused was ill-treating the deceased and sending her away from the matrimonial house.
PW-9 Shivu is the friend of the complainant. According to this witness, the accused was repeatedly requesting him to persuade PW-1 to send back his wife to the matrimonial house.
PW-10 Indrajith is the friend of the complainant/PW-1, who accompanied him to Arasikere on the date of the incident. He has corroborated the fact that on receipt of a phone call from the deceased, he and PW-1 rushed to the place of the incident and saw the dead body in the rear portion of the house of PW-1.
PW-11 Renukappa is the panch witness to the inquest mahazar Ex-P3.
PW-12 Ganeshappa is examined to state that about one week prior to the incident, he had seen accused No.2 and another in the house of PW-2.
PW-13-Yogesha and PW-15- Shivakumar are the panch witnesses to the seizure of clothes found on the deceased, under the mahazar Ex-P4.
PW-14 is the panch witness for the recovery of chopper M.O.1.
PW-16- Dr. Jawahar. B is the Medical Officer, who conducted inquest over the dead-body and issued post- mortem report as per Ex-P6 and also examined the chopper M.O.1 and gave his opinion as per Ex-P7.
PW-17 Neelakantha Murthy is the police constable attached to Banawara Police Station, who submitted the FIR as per Ex-P8 to the Magistrate.
PW-18 - Ganghadara is the ASI of Banawara Police Station at the relevant time. He registered the case in Cr.No.160/2007.
PW-19 - Thimmashetty is the PSI of Banawara Police Station, who received the complaint from PW-1 at the spot of occurrence at about 3.00 p.m. on 22.10.2007.
PW-20 - T. Kumar, Circle Inspector of Arasikere Rural was the Investigating Officer who laid the charge- sheet against the accused.
9. As could be seen from the material produced before the Court, to bring home the charge under section 498A of Indian Penal Code, the prosecution has relied on the testimony of PW.1, PW.2 -the brother and mother of the deceased as well as the testimony of PW -8 paternal uncle of the deceased and PW-7, who mediated the alleged disputes between the deceased and the accused. These witnesses have deposed about the various instances of cruelty suffered by the deceased at the hands of the accused and the steps taken by them to bring about rapprochement between the deceased and the accused. These witnesses are consistent in their evidence that despite the efforts made by the elders and the relatives to patch up the differences between the accused and the deceased, the accused persisted in his behaviour and was treating the deceased with utmost cruelty driving the deceased to leave the matrimonial home and to live in the house of her mother. Undoubtedly, these witnesses being the relatives of the deceased are competent to speak about the cruelty meted out to the deceased in her matrimonial home and there is no reason to doubt or disbelieve their testimony with regard to the instances of cruelty spoken to by them in their evidence. Even otherwise, the defence has not brought on record any contradictions or omissions affecting the veracity of the testimony of these witnesses, thereby establishing the guilt of the accused for the offence punishable under section 498A of Indian Penal Code. Hence, we do not find any reason to differ with the finding recorded by the Trial Court on this count.
10. Coming to the charge of murder, we find that the prosecution has produced reliable and convincing evidence by way of examining the immediate neighbours of the deceased. It is the specific case of the prosecution that on the date of the incident, the deceased was all alone in the house and at that time, the accused sneaked into the house of the deceased. The SOS sent by the deceased to her brother PW.1 asking him to immediately return to the house on the apprehension of the impending danger to her life is convincingly proved by the evidence of PW.1 and PW.2 as well as the evidence of PW.10 who was accompanying PW.1 at the time of receipt of phone call from the deceased. The utterances made by the deceased expressing fear on account of the presence of the accused in the house in the context of the impending threat to her life become relevant under section 6 of the Evidence Act as res gestae as the subsequent events proved in evidence establish that the accused carried out these threats by assaulting the deceased with the chopper causing her death.
11. The material witnesses examined by the prosecution namely PW.3 to PW.6 are the immediate neighbours of the deceased and are natural witnesses competent to speak about the incident. In their evidence, they have given a reliable and truthful account of the events that transpired in their presence. All these witnesses are consistent in their evidence that on hearing the screams and cries, they rushed to the spot and found the accused assaulting the deceased with the chopper. These witnesses have further stated that the accused wielded the chopper at them and thereafter, went away from the spot carrying the chopper with him.
12. Learned counsel for the accused, however has contended that PW.3 to PW.6 have deposed in their evidence that on hearing the screams of Taslima, they rushed to the spot, but the said Taslima has not been examined before the Court. It is the submission of the learned counsel that the non-examination of the said Taslima creates strong doubt about the genesis of the incident and therefore, no credence could be given to the testimony of PW.3 to PW.9.
13. We do not find any substance in this argument. No doubt it is true that Smt.Taslima who has been named as one of the eyewitnesses to the incident has not been examined by the prosecution, but that itself cannot be a ground to doubt or to discard the testimony of the witnesses examined by the prosecution. In this regard, it is relevant to note that the mother of the said Taslima is examined as PW.3 and in her evidence, she has categorically stated that her daughter Taslima was in her post partum period. Therefore, non-examination of Taslima cannot be made a ground to attack the testimony of other eyewitnesses. What is relevant to be noted is that PW.3 as well as PW.4, PW.5 and PW.6 have specifically stated that on hearing the screams of Taslima, they rushed to the spot. In order to appreciate the testimony of these witnesses, it is relevant to note that the houses of PW.3 to PW.6 were located in the immediate neighbourhood and it has come in evidence that the houses of PW.3 and PW.2 were separated by a common wall. The distance between the house of the deceased and that of PW.3 to PW.6 is specifically mentioned in the spot mahazar Ex.P3 making it evident that these witnesses were living in the vicinity and the incident was either visible or audible to them from their respective houses. Therefore, there is nothing unusual in their arrival to the spot of occurrence on hearing the screams. They are not chance witnesses.
14. In this context, it is relevant to note that the presence of PW-3 to PW-6 at the spot of occurrence is spoken to by each other which itself lends assurance that PW.3 to PW.6 were the eyewitnesses to the incident. Though it is argued by the learned counsel for the accused that none of these witnesses have witnessed the incident, the answers elicited from the mouth of these witnesses undoubtedly establish that during the occurrence, all these witnesses rushed to the spot and saw the accused assaulting the deceased with the chopper. There is absolutely no inconsistency or contradiction whatsoever in the testimony of these witnesses regarding the overt-acts committed by the accused. Nothing has been brought out in the cross-examination of these witnesses to show that these witnesses were either interested witnesses or that they were not knowing the accused or the deceased. As a matter of fact, in the cross-examination of PW.3, it is elicited that just before the incident, the appellant/accused had passed in front of tea shop of PW.3 and at that time, PW.3 talked with the accused and even gave him tea. It is further elicited in her cross- examination that she saw the accused going into the house of the deceased.
15. Likewise, PW.4, PW.5 and PW.6 have reiterated in their cross-examination that when they reached the spot, they found the accused assaulting the deceased with the chopper and thereafter, leaving the place carrying the chopper with him. The names of these witnesses also find place in the inquest mahazar being the persons who had last seen the deceased alive which again inspires confidence to hold that PW.4 and PW.6 were the eyewitnesses to the incident and their testimony deserves full credence. The defence has not brought out any circumstances to show that any of these witnesses had any reason to give false evidence against the accused or to implicate him falsely in the alleged offence.
16. The oral testimony of the above witnesses get further corroboration from the recovery of the chopper at the instance of the accused. In order to prove the recovery, the prosecution has examined PW.14 an independent witness who has specifically stated that the accused led them to Muslim burial ground and produced the chopper M.O.1 which was covered in the mud and the police seized the said chopper by drawing a mahazar Ex.P5. The recovery of this chopper on the basis of the voluntary statement of the accused has not been discredited in the cross-examination of PW.14, but relying on the answer extracted from the mouth of PW.1 in the course of his cross-examination, the learned counsel for the accused has built up an argument that the recovery evidence produced by the prosecution is totally unreliable as PW.1 himself has admitted in the cross-examination that the police had taken the chopper from PW.1.
17. In appreciating the above contention, it is relevant to note that during the examination of PW.1, he has identified the chopper M.O.1 and has specifically deposed that the said chopper was from his house. The other witnesses examined by the prosecution have also stated that the accused made use of the chopper lying in the house of PW.2 to assault the deceased. The answer elicited from the mouth of PW.1 has to be understood in this context. As already stated above, all the eyewitnesses examined by the prosecution namely PW.3 to PW.6 have consistently stated in their evidence that after the assault, the accused carried away the chopper with him. Therefore, PW-1 could not have found it in the house after the incident. Under the said circumstance, solely on the basis of a stray answer elicited from the mouth of PW.1, it cannot be held that the chopper M.O.1 was produced by PW.1.
18. It is a trite principle that evidence has to be read as a whole and not in isolation. Picking up a stray sentence here and there from the bulk of evidence may not convey the proper affirmation or denial of a fact spoken by a witness. In the instant case, the stray answer elicited from the mouth of PW.5 in the course of cross-examination cannot be construed to mean that PW.1 himself produced the chopper to the police, nor does it convey the meaning that the police seized it from the possession of PW.1 as sought to be contended by the learned counsel for the accused. The above answer does not weaken the testimony of other eyewitnesses regarding the overt-acts committed to the accused in causing the death of the deceased. As already discussed above, PW.3 to PW.6, the eyewitnesses examined by the prosecution have clearly deposed that the deceased was assaulted with the chopper. The medical evidence produced by the prosecution also confirms the fact that the deceased had sustained incised wounds on her head and below the right ear and over the right shoulder. The opinion given by PW.15 to the effect that the injuries inflicted on the deceased could have been caused by the weapon M.O.1 fully corroborates the case of the prosecution that the accused and the accused alone committed the murder of the deceased by assaulting her with the chopper M.O.1.
19. The Trial Court has appreciated the oral and documentary evidence produced by the prosecution in proper perspective and has come to the right conclusion that the accused is guilty of the offence punishable under section 302 of Indian Penal Code. The evidence discussed above proves beyond reasonable doubt that on the date of the incident, at about 1.45 p.m., accused entered the house of PW-2, picked up quarrel with the deceased and assaulted her with the chopper inflicting grievous injuries on her head and shoulder causing her death. The prosecution has proved its case with the direct evidence of the eyewitnesses and their testimony is duly corroborated by the recovery of weapon and the medical evidence which establish the guilt of the accused beyond any manner of doubt. The motive for the crime is also proved with cogent and convincing evidence. The appellant has not been able to point out any error or infirmity in the findings recorded by the Trial Court. On re-appreciation of evidence, we do not find any justifiable reason to interfere with the impugned judgment and the order of sentence. We do not find any merit in this appeal.
20. For the above reasons, we pass the following order:-
The appeal is dismissed.