(Prayer: This Crl.A. is filed U/s.374(2) of Cr.P.C., praying to set aside the Judgment of conviction Dt.29.11.2011 passed by the P.O., FTC-1, Bengaluru, In S.C.No.1126/2007 -convicting the Appellant/Accused for the offence P/U/S.302, 307 of IPC. The Appellant/Accused is sentenced to undergo imprisonment for life and pay a fine of 20,000/- In default of payment of fine he shall undergo S.I. for 9 Months for the offence P/U/S.302 of IPC and the appellant/accused is sentenced to undergo S.I. for 4 Years and pay a fine of 3,000/- In default of payment of fine he shall undergo S.I. for 6 Months for the offence P/U/S.307 of IPC.)
1. This appeal is by the convicted appellant/accused against the judgment and order of conviction dated 29.11.2011 passed by the Fast Track Court-1, Bengaluru City in S.C.No.1126/2007.
2. The appellant/accused was tried and convicted for the offences punishable under sections 302 and 307 of Indian Penal Code.
3. The case of the prosecution in brief is that the deceased Padmavathi was the wife of the accused. She was living along with the accused and their second daughter Swathi (PW.1) at No.186, 3rd floor, Datta Complex, Gandhi Bazaar Main Road, within the limits of the Basavanagudi Police Station. The accused was in the habit of drinking alcohol and used to quarrel with the deceased demanding money from her and also used to threaten to kill her. The accused was not attending to any work. According to the prosecution, on 15.8.2007 at about 10.30 p.m., the accused quarreled with the deceased and assaulted her with a chopper on the head causing her death. This incident was witnessed by their daughter Kum.Swathi (PW.1) and when she screamed, the accused chased PW.1 holding the chopper and pushed her from the third floor with intent to kill her. PW.1 sustained grievous injury and was admitted to Shekar Hospital.
4. On receiving the information, the PSI attached to Basavanagudi Police Station (PW.20) rushed to the hospital and reduced into writing the oral complaint of PW.1 and registered the FIR in Cr.No.136/2007 against the accused for the offences punishable under sections 302 and 506(B) of Indian Penal Code. The investigation was continued by PW.15-the Police Inspector of Basavanagudi Police Station. In the course of investigation, he seized the chopper used for the commission of the offence and the blood-stained clothes of the accused. He conducted the inquest over the dead body and recorded the statements of the material witnesses, secured the post mortem report and the report of forensic science laboratory and finally the charge-sheet came to be laid against the accused under sections 302 and 307 of Indian Penal Code.
5. The accused denied the charges. During the trial, the prosecution examined as many as 22 witnesses as PW.1 to PW.22 and produced documentary evidence by way of exhibits P1 to P18 and the material objects at M.Os 1 to 10. In the course of the cross-examination of the prosecution witnesses, the defence got marked exhibits D1 to D8. On consideration of the above material and on hearing the parties, the Trial Court found the accused guilty of the offences punishable under sections 302 and 307 of Indian Penal Code and sentenced him to undergo life imprisonment and a fine of Rs. 20,000/- in default to suffer SI for nine months for the offence under section 302 of Indian Penal Code and further sentenced to undergo SI for a period of four years and a fine of Rs.3,000/- in default to suffer SI for six months for the offence under section 307 of Indian Penal Code.
6. Feeling aggrieved by the impugned judgment of conviction and order of sentence, the appellant has preferred this appeal.
7. The application moved by the accused for suspension of sentence and for grant of bail has been rejected. The records of the lower court are secured.
8. We have heard the learned Advocates on either side in respect of their respective contentions. Both of them have taken us through the material on record including the judgment of the Court below.
9. On going through the material produced before the Court, we find that the prosecution has mainly relied on evidence of PW.1 Kum.Swathi as the eye-witness to the incident. Further the prosecution has examined the immediate relatives of the deceased namely her sisters as PW.4, PW.5 and PW.6 in order to speak about the torture meted out to the deceased by her husband namely the accused. The prosecution has also examined the panch witness for the spot mahazar Ex.P1 and the seizure of chopper M.O.1 and the blood stains from the spot of occurrence. PW.3 is a witness for the inquest mahazar Ex.P3 and PW.11 is the witness for the recovery of the blood stained shirt, lungi and banian (M.Os.4, 5 and 6) worn by accused at the time of the incident. These articles were recovered on the basis of the voluntary statement of the accused by drawing a mahazar Ex.P11.
10. The other witnesses examined by the prosecution are the medical officers namely PW.16 Dr.K.V.Satish, who conducted the post mortem examination on the dead body and issued the post mortem report as per Ex.P17 as well as the opinion regarding the weapon M.O.1 stating that the external injuries and the corresponding internal injuries sustained by the deceased are possible to be caused by the said weapon namely M.O.1.
11. According to this witness, during the post-mortem examination, he noticed the following injuries on the deceased viz.,:-
1. Vertically placed chop injury measuring 15 cms x 1 cm x bone deep present over centre of top of head and underlying bone shows cut fracture.
2. Obliquely placed chop injury measuring 7 cm x 1cm x bone deep is present over left side top of head, 2 cms left of injury No.1, and underlying bone shows cut fracture.
3. Chop injury measuring 14 cm x 1.5 cm x cavity deep present over left parietal region, 6 cm above left ear, underlying bone shown cut fracture and through the injury cut membranes and brain matter is visible.
4. Chop injury measuring 11 cm x 1.5 cm x cavity deep present over left parieto temporal region situated 1 cm below injury No.3 underlying bones shows cut fracture and through injury cut membrances and brain matter are visible.
5. Chop injury measuring 8 cm x 1 cm x bone deep present over left temporal region situated 2 cm above left ear and underlying bone is cut.
On dissection of bone, I found following internal injuries:-
Skull: Fissure fracture of 9 cm in length extending vertically from parietal bone into posterior cranial fossa. Another fissure fracture measuring 7 cm present over left temporal bone and extending vertically downwards in to left side of middle cranial fossa. Membrane shows lacerated under fractured sides.
Brain: Brain covered with subdural and subarachinoid haemorrhages.
Stomach contain 200 ml of partially digested rice meal rest of the other organs are intact and pale. All the fractured ends of bones shows blood extravasations.
All the injuries are ante mortem and fresh in nature. Time since death was 12 to 24 hours prior to conduction of PM examination.
12. PW.14 Dr.V.P.Aithal was a Doctor attached to Shekar Hospital, Bengaluru where PW-1 was admitted for treatment. This witness is examined to speak to the fact that on 15.8.2007 at about 11.20 p.m., PW.1 Swathi was brought to Shekar Hospital with a history of fall from terrace at her residence and she was discharged from the hospital on 16.8.2007 against the medical advice. PW.22 Dr.Thanveer Ali has deposed that on 15.8.2007 at about 11.20 p.m., PW.1 was brought to their hospital by Hoysala Police and he gave first aid to her and referred the case to orthopedic surgeon. PW.21 Dr.Ravishankar attached to the same hospital is examined to state that on 16.8.2007, he examined PW.1 Kum.Swathi and noted the following injuries:-
1. Left Communited Distal intra articula radius fracture plus ulna styloid fracture.
2. Right communited lower radius fracture plus ulna fracture.
3. Pelvis -fracture right pubic rami plus. Acetabulam floor fracture.
4. Thoraco lumbar - compression fracture L-4 vertebra with neurological deficit.
5. Left ankle chit fracture navicular.
13. The other witnesses examined by the prosecution are the police officials namely PW.20 the PSI of Basavanagudi Police Station who recorded the statement of Swathi as per Ex.P2, PW.17 the ASI of Basavanagudi Police Station who arrested the accused and produced him before the IO. PW.15 the then Police Inspector of Basavanagudi Police Station took over the further investigation, conducted the spot mahazar Ex.P1 and seized the chopper and blood stains from the spot of occurrence, recorded the statements of the material witnesses and on arrest of the accused, recovered the blood stained clothes of the accused namely M.Os.4 to 6 and forwarded them to the forensic science laboratory. PW.9 is the Assistant Director in forensic science laboratory, Madivala who conducted chemical examination of M.O.1 chopper and the blood stained clothes of the accused and the deceased and issued his report as per Ex.P6 to the effect that the blood stains in M.Os.4 to 9 were stained with 'AB' group of blood.
14. As could be seen from the impugned judgment, the Trial Court has relied mainly on the oral testimony of PW.1 Kum.Swathi as that of an eyewitness to the incident. Further the Trial Court has also accepted the evidence produced by the prosecution regarding the recovery of the blood stained clothes of the accused at M.Os.4 to 6 and further relying on the medical evidence and the opinion of Forensic Science experts, the Trial Court has held the accused guilty of the offence under section 302 of Indian Penal Code. Insofar as the charge under section 307 of Indian Penal Code is concerned, the Trial Court has relied on the oral testimony of PW.1 as well as the medical evidence given by the Doctors attached to the Shekar Hospital and has recorded a finding that the accused pushed PW.1 from the third floor with intent to kill her and accordingly held the accused liable for conviction under section 307 of Indian Penal Code.
15. The above findings recorded by the trial Judge are assailed in this appeal by raising the following contentions:
(i) The main contention urged by the learned counsel for the appellant is that PW.1 is not an eyewitness to the incident. It is the submission of the learned counsel that the evidence produced by the prosecution suggest that at the time of alleged incident, PW.1 was not in the house and by the time she reached home, she found her mother in a pool of blood and in a panic when she tried to come out from that place, she fell down from the third floor and sustained injuries. It is the submission of the learned counsel that in her earliest statement as per Ex.P1, she has clearly stated that she fell from the third floor, but contrary to this, in her evidence she has stated that the accused pushed her from the third floor, making it evident that with intent to implicate the accused, PW.1 has improved the version at every stage and has given false evidence against her own father. It is the submission of the learned counsel that the medical evidence produced by the prosecution namely the entries made in the admission register maintained in Shekar Hospital also go to show that she has given the history as fall from the terrace making it evident that PW.1 is a false witness and therefore, no credence could be given to her interested testimony. Learned counsel has further submitted that her evidence suffers from contradictions and improvements and therefore, the Trial Court has erred in placing reliance on the testimony of PW.1.
(ii) It is the submission of the learned counsel that barring the evidence of PW.1, there is no other direct or circumstantial evidence to connect the accused to the death of his wife. Hence, the Trial Court has committed serious error in convicting the accused solely on the basis of the testimony of PW.1. In support of this contention, the learned counsel has relied on the decisions rendered in the following cases:
1. KAJAL SEN and OTHERS vs. STATE OF ASSAM - AIR 2002 SC 617;
2. THANEDAR SINGH vs. STATE OF MADHYA PRADESH- AIR 2002 SC 175;
3. JASWANT GIR vs. STATE OF PUNJAB - 2005(12) SCC 438
4. SUKHJIT SINGH vs. STATE OF PUNJAB - 2014(10) SCC 270
5. H.UMESH @ UMAKANTHA RAO vs. STATE OF KARNATAKA - 1991(4) KLJ 398 and
6. MADAIH vs. STATE By YALANDUR POLICE - 1991 (3) KLJ 476.
(iii) In regard to the recovery evidence relied on by the prosecution, the learned counsel would submit that the panch witness examined by the prosecution namely PW.11 has stated that a cover containing white shirt, lungi and banian was recovered from a vacant space from where the rag pickers pick the waste every day. Under the said circumstance, it cannot be believed that the blood stained clothes of the accused would be lying in the open space more than a week after the alleged incident. It is the submission of the learned counsel that the manner in which the prosecution has trumped up evidence goes to show that the recovery evidence is planted so as to create evidence in support of the false case foisted by the prosecution. Learned counsel therefore has sought to set aside the impugned judgment.
16. Learned HCGP however has supported the impugned judgment, reiterating that the testimony of PW.1 is highly reliable and trustworthy. It is the submission of the learned HCGP that the defence has not brought on record any circumstance to show that PW-1 is either tutored or that she has falsely implicated the accused in the alleged offence. It is the submission of the learned HCGP that if infact she was tutored, she could have turned hostile to save her father unless she has actually witnessed the incident. Learned HCGP pointed out that PW-1 herself has sustained injury during the occurrence and therefore, her testimony deserves full credence especially in the light of conduct of the accused which is inconsistent with the plea of innocence put forward by the accused. It is his argument that the evidence on record clearly goes to show that accused was very much present at the spot. The very defence set up by the accused indicate that he was at the spot when PW.1 fell down from the terrace. Inspite of it, the accused did not bother to shift her to the hospital or to attend the funeral of the deceased. The abscondence of the accused from the spot of occurrence and the other circumstances proved in evidence clinchingly establish that after inflicting fatal blow on the head of the deceased, the accused chased PW.1 driving her to fall from the terrace and thereafter, the accused managed to dump the dead body below the water tank covering it in a plastic cover and running away from the spot with his blood stained clothes. The chopper recovered from the house of the accused and the blood stained clothes recovered at the instance of the accused directly connect the accused thereby establishing the guilt of the accused.
17. It is the submission of the learned counsel that conviction could be based on the testimony of a single witness and there is no hard and fast rule that the testimony of a witness must be corroborated with the testimony of multiple or plurality of witnesses. In support of this argument, the learned counsel has relied on the decision in the case of Veer Singh and Others vs State of Uttar Pradesh reported in (2014) 2 SCC 455 on the proposition, that the recovery of incriminating article from open places accessible to others, do not vitiate the evidence under section 27 of Evidence Act. Learned HCGP has referred to State of Himachal Pradesh vs. JEET SINGH, 1999 Crl.Law Journal 2025. It is submission of the learned HCGP that the accused has not taken the plea of alibi. On the contrary, the factum of abscondence has been proved. The accused failed to explain where he was on the fateful night and how he could abscond for long. In support of this argument, the learned counsel has relied on the case law reported in AIR 2013 SC 1643 (Sooguru Subramanyam vs. State of A.P.)
18. We have bestowed our careful thought to the submission made at the bar and have scrutinized the evidence on record. Coming to the acceptance of the testimony of PW.1 is concerned, we have no hesitation whatsoever to hold that PW.1 was an eyewitness to the incident and that she had personally witnessed the accused assaulting the deceased with a chopper. Though the learned counsel has strenuously tried to point out certain discrepancies and inconsistencies in the evidence of PW.1, a wholesome reading of evidence of PW-1 clearly establishes that on the date of incident, she came home at about 10.30 p.m. The further evidence of PW.1 reads that when she came home, she found the door closed and when she opened it, she saw the accused holding a chopper. This evidence is not shaken in the cross-examination. In her further examination, she has clearly stated that the accused assaulted her mother with a chopper on the head and at that time her mother fell down. Learned counsel for the accused however has picked up the portion of the evidence of this witness wherein she has stated that the accused again assaulted her mother with chopper on chest and stomach and has built up an argument that the medical evidence produced by the prosecution does not show that the deceased has sustained any injury on her chest or stomach and therefore, the statement made by PW.1 that she was an eyewitness to the incident cannot be believed.
19. The statement highlighted by the learned defence counsel, in our opinion cannot be treated as a major discrepancy affecting the credibility of the testimony of PW-1 with regard to the presence of the accused at the spot of occurrence and with regard to the fatal blow inflicted by him on the head of the deceased. It is quite natural that PW-1 having been scared might not have noted the exact number of injuries and the location thereof. Therefore, solely for that reason, her entire testimony cannot be discarded nor does it lead to doubt her presence during the occurance. In this contest, it is pertinent to note that in the course of the cross-examination of PW.1, it is suggested that when PW.1 came home, accused was standing in front of the house. The relevant portion of the cross-examination of PW-1 reads as follows:
"On 15.8.2007, at about 10.30 p.m., I went near the house. It is false to suggest that accused was standing in front of our house when I went there. It is false to suggest that the accused inquired me about the deceased. It is false to suggest that he came to the house 1-2 minutes back and thought that myself and the deceased went to the shop to bring groceries and he is waiting for us. It is false to suggest that I told him that I alone came from the job. ... It is false to suggest that myself and the accused opened the cover and found my mother in a pool of blood. ... It is false to suggest that the accused told me that he came just 2 minutes back and do not know anything about it."
The above suggestions presuppose the presence of the accused. Though the accused has not substantiated the defence set up by him with any cogent evidence, nonetheless the very suggestions put to PW.1 indicate that the accused was present in the house when PW.1 reached home. Further, what inspires confidence in the evidence of PW.1 is that she herself has sustained injuries during the occurrence by falling from the terrace. Though the case set up by the prosecution that the accused pushed her from the terrace cannot be believed because of the conflicting versions appearing in the earliest statement given by PW.1 in the hospital as per Ex.P1 and the entries made in the admission register maintained in Shekar Hospital, nonetheless her evidence with regard to the presence of the accused in the house when she reached home could be accepted without any reservation.
20. It is not in dispute that the incident took place in the house of the accused around 10.30 p.m. Though the body of the deceased was found in a cover in front of the house under the overhead water tank, yet in the spot mahazar Ex.P1 prepared between 12.30 a.m. and 1.45 a.m. on 16.8.2007, it is specifically mentioned that blood stains were found in the room and a blood stained chopper was found under the cot in the house of the accused. It is not the case of the accused that any one other than deceased, accused and PW.1 were residing in the said house. The suggestions made to PW.1, as extracted above, indicate that no one had any access to the house of the deceased on the date of the incident. There is not even a remote suggestion to this effect. On the other hand, it is suggested to PW.1 that accused himself had reached home earlier to the arrival of PW.1. All these circumstances, therefore, clearly establish that the incident took place in the presence of PW.1 as narrated by her in her evidence.
21. The evidence of PW.1 gets further corroboration from the seizure of the chopper M.O.1 from the house of the accused as well as the recovery of the blood stained clothes of the accused. Though the accused has disputed the genuineness of the recovery contending that the recovery was effected from an open space accessible to the general public, but as rightly submitted by the HCGP, solely on that ground, the recovery does not get vitiated. Dealing with a similar contention, the Hon'ble Supreme Court of India in the case reported in 1999 Crl. Law Journal 2025 has held as under:
"26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
22. In the instant case, PW.11 is an independent witness to the recovery of M.Os.4 and 6. He has unequivocally stated in his evidence that on 20.8.2007, police brought the accused near Haralu plant situated in vacant place of Corporation and accused took out a cover from the stem of the said plant and produced it before the police and in his presence and in his presence and in the presence of one Nagesh, the accused opened the cover and produced a white shirt, lungi and banian, which contained blood stains on them. In the cross-examination it is elicited that PW.11 was doing vegetable business in Gandhibazar area and other witness Nagesh was also doing business on foot path in Gandhibazar. None of these witnesses have any reason to implicate the accused or to give false evidence before the court. No circumstances are brought out in the cross-examination of PW-11 to show that he is an interested witness. Accused has not taken up a plea that M.Os. 4 to 6 do not belong to him. On the other hand, during the investigation, these clothes are seen to have been sent to forensic science laboratory for chemical examination and it is proved in evidence that these clothes are stained with AB group of blood. It is important to note that PW.9 who examined these articles has also examined the stains found on the clothes of the deceased and it is certified that the clothes of the deceased namely MOs.7, 8 and 9 were also stained with AB group of blood. The matching of the blood group found in the stains contained in the clothes of the accused and the clothes of the deceased, not only connects the accused to the murder of the deceased, but also lends full corroboration to the ocular testimony of PW.1 that the accused inflicted the bleeding injuries on the head of the deceased causing her death on the fateful night. In the face of this evidence, we do not find any error or infirmity in the finding recorded by the trial judge holding the accused guilty of the charge under section 302 of Indian Penal Code.
23. Insofar as the conviction of the accused for the offence under section 307 of Indian Penal Code is concerned, we find that the material produced by the prosecution does not inspire confidence to sustain the charge under section 307 of Indian Penal Code. According to the prosecution, soon after PW.1 fell from the terrace, she was shifted to Shekar Hospital. It is elicited in the cross-examination of PW.1 that she was taken to the hospital by her paternal uncle Nagaraj. He is not examined by the prosecution. Likewise, her other paternal uncle Venkata Subbaiah who is stated to have shifted her to NIMHANS from Shekar Hospital is also not examined by the prosecution. PW.2-Raju has stated that at about 10.45 p.m. when he came out from Kollapur hotel, he saw PW.1 fallen from the third floor and he other public took her to Shekar Hospital in Hoysala Van.
24. According to the prosecution, on getting the information of the incident, PW.20 - the PSI of Basavanagudi Police Station rushed to Shekar Hospital and recorded the statement of PW.1 as per Ex.P2. It is relevant to note that in the said statement Ex.P2, at the earliest point of time, PW.1 has stated that on seeing the accused assaulting her mother with chopper on her head, chest and stomach, she screamed aloud and at that time, the accused came forward to assault her holding the chopper and at the time, out of fear, she fell from the terrace. In the admission register maintained by the Shekar Hospital, Ex.D17 as well as in the intimation slip sent by the Shekar Hospital to the Police, it is stated that PW.1 was admitted to the hospital on 15.8.2007 at 11.20 p.m. with the alleged history of fall from the terrace on 15.8.2007 at 11.00 p.m. at Dattatreya Complex, Bengaluru. These entries are not disputed by the prosecution. It is a matter of record that Ex-P18, the FIR is also registered for the offences punishable under sections 302 and 506-B of Indian Penal Code making it evident that there were no allegations of attempt to murder at the earliest instances. It is only during the course of investigation, the charge under Section 307 Indian Penal Code appears to have been incorporated. Even though PW-1 has stated in her evidence that after attacking the deceased, the accused came to assault her holding chopper and she was pushed by the accused from the third floor with intent to kill her, in view of the earliest version given by her at the undisputed point of time, it is not safe to rely on the uncorroborated testimony of PW-1. Consequently, benefit of doubt has to be accorded to the accused insofar as the offence alleged under Section 307 Indian Penal Code is concerned. To this extent, we are unable to concur with the findings recorded by the trial Judge, as the evidence produced by the prosecution is not sufficient to attract the offence under Section 307 Indian Penal Code. On reconsideration of the evidence produced by the prosecution, we are of the view that the accused deserves to be acquitted of the offence punishable under section 307 Indian Penal Code. To this extent, the impugned judgment calls for modification.
25. Accordingly, we proceed to pass the following order:-
The appeal is allowed-in-part. The conviction of the appellant/accused for the offence punishable under section 307 of Indian Penal Code is set-aside. The conviction of the appellant/accused under Section 302 Indian Penal Code and the sentence imposed by the Trial Court for the offence punishable under section 302 Indian Penal Code is confirmed. The appellant is given set off for the period of detention undergone by him as an undertrial prisoner as contemplated under section 428 of Cr.P.C.