-1- [CASE NUMBER] IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER 2016 PRESENT THE HON'BLE MR. JUSTICE H.G.RAMESH AND THE HON'BLE MR. JUSTICE [ENTITY] CRIMINAL APPEAL NO.156 OF 2012 BETWEEN : MUTHURAJU S/O LATE APPAJI SETTY, AGED ABOUT 42 YEARS, R/AT THIMMAIAS HOUSE, BYATARAYANAPURA NEW EXTENSION, MYSURU ROAD, BENGALURU. APPELLANT (BY SRI.M.SHASHIDHARA, ADVOCATE) AND : STATE OF KARNATAKA BY RAJAGOPALNAGAR P.S. RESPONDENT (BY SRI.VIJAYA KUMAR MAJAGE, ADDL.SPP) THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO CALL FOR RECORDS IN S.C.NO.1037/2007 WHICH WAS DISPOSED OF ON 27.08.2011 BY THE PRINCIPAL CITY -2- [CASE NUMBER] CIVIL AND SESSIONS JUDGE, BENGALURU AND TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 27.8.2011. THIS CRL.A HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.11.2016, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, [ENTITY] J., DELIVERED THE FOLLOWING: JUDGMENT
This appeal is directed against the judgment and order dated 27th August 2011 passed by the Principal City Civil and Sessions Judge, Bengaluru in [CASE NUMBER].
2. The appellant is convicted for the offence punishable under [SECTION] of [ACT]. He is sentenced to undergo RI for life and also to pay a fine of Rs.20,000/- (twenty thousand) and in default of payment of fine amount, to undergo SI for six months.
3. The charge against the accused is that on 26.6.2007 at about 11.15 a.m., when the deceased Kum.[ENTITY] was sleeping in a room in the house belonging to her grandfather [ENTITY] (PW.2) situated at the 5th cross, Friends Colony, Peenya II Stage, Bengaluru within the jurisdiction of Rajagopalanagara Police Station, the appellant committed her murder by smothering her with a pillow as she was coming in the way of his illicit relationship with [ENTITY] (PW.5), the mother of the deceased.
4. The case set up by the prosecution is that [ENTITY] (PW.5) was married to one [ENTITY] who deserted her ten years after the marriage. Hence, she was living in the house of her father namely PW.2 [ENTITY] along with her two daughters [ENTITY] (deceased) and [ENTITY] (PW.3). [ENTITY] and her father were carrying on vegetable vending business. The accused was an autorickshaw driver and he was bringing vegetables in his autorickshaw to the shop of [ENTITY] and gradually he developed intimacy with her and started to have illicit connection with her despite objections of her father [ENTITY]. The further case of the prosecution is that the deceased was also objecting to this illicit relationship between the accused and [ENTITY] and hence to do away with her, on 26.6.2007 at about 11.15 a.m., when the deceased was sleeping, the accused committed her murder by smothering her with a pillow.
5. On laying the charge-sheet, the accused was tried before the lower Court and to bring home the guilt of the accused, the prosecution examined 12 witnesses as PWs.1 to 12 and produced nine documents marked as exhibits P1 to P9. In the course of cross examination of PW.3, Ex.D1 came to be marked on behalf of the defence. The prosecution also produced six material objects marked as M.Os.1 to 6. On hearing the learned Public Prosecutor and the learned counsel for the accused and analyzing the oral and documentary evidence produced by the prosecution, the Trial Court held that the deceased [ENTITY] met with a homicidal death and the accused committed her murder rendering him liable for conviction and accordingly sentenced him as above.
6. The appellant has now come up in appeal questioning the legality and correctness of the findings recorded by the learned Sessions Judge interalia contending that the conviction and sentence passed by the Trial Court is opposed to law, facts, circumstances and probabilities of the case. It is contended that the prosecution has failed to establish the involvement of the appellant in the alleged offence. Further it is urged that the appellant was represented by a standing counsel in the Trial Court and due to the absence of standing counsel, the evidence of the material witnesses could not be opposed in the cross- examination; the Trial Court had not provided the best experienced advocate for conducting the trial, as a result, grave injustice has been caused to the appellant in defending the allegations leveled against him. It is further contended that the witnesses examined by the prosecution are the close relatives of the deceased and the trial Judge has seriously erred in relying upon the uncorroborated, inconsistent, unnatural and tutored evidence of a child witness. The trial Judge has failed to appreciate the attendant circumstances which are favourable to the defence. On these grounds, the appellant has sought to set aside the impugned judgment of conviction and order of sentence dated 27.8.2011 passed against him.
7. The records of the lower Court are secured and we have heard at length the learned counsel appearing for the appellant and the learned State Public Prosecutor. 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 [ENTITY] is the witness for the spot panchanama Ex.P1 and seizure of the pillow M.O.1 from the spot of occurrence. This witness has deposed in conformity with the case of the prosecution regarding the contents of the spot mahazar and seizure of M.O.1.
PW.2 [ENTITY] is the grandfather of the deceased. He has spoken about the complaint lodged by him as per Ex.P2 and in his evidence, he has spoken about the details of the incident as narrated to him by PW.3.
PW.3 [ENTITY] is the sister of the deceased and eye-witness to the incident. In addition to narrating the sequence of events and commission of the offence by the accused, she has also identified M.O.1.
PW.4 [ENTITY] is the neighbour who has stated about the presence of the accused in the house of the deceased during the occurrence.
PW.5 [ENTITY] is the mother of the deceased. Though she has partly turned hostile to the case of the prosecution, in the cross-examination by the learned SPP, she has deposed in conformity with the prosecution case.
PW.6 [ENTITY] is the panch witness to the inquest mahazar Ex.P3.
PW.7 [ENTITY] is the younger sister of PW.5. This witness is examined to prove the illicit relationship between the accused and PW.5.
PW.8 [ENTITY] is the grandmother of the deceased who has also deposed about the illicit relationship between the accused and [ENTITY] and has stated that on the date of occurrence, she had left the house at about 8.00 a.m. or 9.00 a.m. in order to attend to an obsequies ceremony at Kamakshipalya.
PW.9 [ENTITY] is a Police Constable who apprehended the accused on 27.6.2007 at about 4.30 p.m. and produced him before PW.12.
PW.10 Dr.[ENTITY] is the Medical Officer who conducted post mortem on the dead body of the deceased and issued post mortem report as per Ex.P4 and also examined M.O.1 and issued his opinion as per Ex.P5 to the effect that M.O.1 could be used for smothering which has caused the injuries mentioned in the post mortem report Ex.P4.
PW.11 [ENTITY] is a Police Constable who delivered the FIR to the Jurisdictional Magistrate at his residence at about 1.15 a.m. on 27.6.2007.
PW.12 [ENTITY] the then Police Inspector at Rajagopala Nagara Police Station is the investigating officer who recorded the complaint of PW.2 and registered the case in [CASE NUMBER] against the accused for the offence under [SECTION] of [ACT] and recorded the statement of witnesses and submitted the final report before the Jurisdictional Magistrate on 7.9.2007.
9. It is the submission of the learned counsel for the appellant that the whole case of the prosecution is rested on the oral testimony of PW.3 a child witness, but her testimony suffers from serious defects and irreconcilable contradictions. Referring to the relevant portion of the statements elicited in the course of cross-examination of PW.2, PW.4, PW.5 and PW.8, the learned counsel would emphatically submit that the conduct of PW.3 belies her testimony at the spot of occurrence as in all probability, she had gone to school at the relevant point of time and she has been propped up only at a later stage to implicate the accused in the alleged offence. It is the submission of the learned counsel that in the inquest panchanama which was prepared at the earliest point of time, the name of PW.3 does not find place and her statement is not recorded at the earliest point of time which indicates that this witness has been conveniently propped up by the prosecution to bolster up the evidence against the accused. Learned counsel further submitted that the whole case of the prosecution is susceptible to doubt on account of inordinate delay in lodging the complaint. It is the submission of the learned counsel that PW.12 the Investigating Officer has unequivocally stated before the Court that on receiving a phone call from unknown person, he proceeded to the spot and recorded the oral statement of PW.2 and based on the said report, registered a case in [CASE NUMBER]. An endorsement made in the FIR indicates that the FIR was registered at 10.30 p.m. though the incident is said to have taken place around 11.15 a.m. It is the submission of the learned counsel that the intervening delay has been made use by the prosecution to falsely implicate the accused. It is the further submission of the learned counsel that since the Investigating Officer has acted on the information received by him over phone at the first instance, Ex.P2 cannot be treated as the first information report in the eye of law and consequently, the prosecution has suppressed the genesis of the incident rendering the entire case of the prosecution doubtful and unbelievable.
10. In support of his submission, learned counsel placed reliance on the following decisions:
(i) SHANKARLAL vs. STATE OF RAJASTAN reported in AIR 2004 (SC) 3559
(ii) THE [PRECEDENT]
(iii) [PRECEDENT]
(iv) [PRECEDENT]
(v) [PRECEDENT]
(vi) BHAGWAN SINGH & OTHERS vs. STATE OF M.P. reported in AIR 2003 SC 1088
(vii) [PRECEDENT]
(viii) [PRECEDENT] disposed of on 9.9.2016 in [CASE NUMBER]
11. Meeting the above arguments, the learned State Public Prosecutor submitted that the Sessions Court on proper consideration of the material on record has rightly convicted the appellant/accused No.1 for the offence punishable under [SECTION] of [ACT] and therefore the impugned judgment and order does not call for interference. He also submitted that PW-3 the sole eyewitness to the incident has given a true account of the incident without any embellishment or contradiction. There is no reason to doubt or disbelieve her testimony. The testimony of PW-3 is duly corroborated by the other witnesses which conclusively establish the guilt of the accused and therefore there is no reason to interfere with the impugned judgment. With regard to the allegations of delay, the learned State Public Prosecutor has argued that the circumstance brought out in the evidence would show that PW-5 was carrying on illicit relationship with the accused and it was known to all her family members and therefore a deliberate attempt has been made to protect the accused and apparently for this reason, the family of the deceased was hesitant to lodge the complaint against the accused and for the same reason PW-5 partially turned hostile to the prosecution case. The learned State Public Prosecutor would submit that it is only when the police came to know about the incident, prompt action was taken and at the earliest point of time, the accused has been named as the perpetrator of the crime and therefore in the fact situation of the present case, there is no delay whatsoever either in lodging the complaint or in investigating the offence. It is submission of the learned State Public Prosecutor that the prosecution having proved the guilt of the accused with the direct evidence of the eye- witnesses and supporting material, the question of delay does not assume any significance and therefore the impugned judgment does not call for interference.
12. We have carefully considered the submissions made by the learned counsel for the parties. The point that arises for our consideration is:-
"Whether the impugned judgment and order calls for interference?"
13. It is relevant to note that with regard to the cause of death, the trial Court has recorded a categorical finding that the death was homicidal. In arriving at this conclusion, the trial Court has accepted the medical evidence produced by the prosecution and the testimony of PW-10- [ENTITY], Doctor who conducted the post-mortem examination and issued P.M. report Ex-P5. The trial Court has also relied on the FSL report Ex-P8. The appellant/accused has not challenged this finding in this appeal. Even otherwise the injuries noted by PW-10 during post mortem examination and the cause of death certified by him leads to the only conclusion that the deceased died due to smothering. At Ex-P3, it is noted as under:-
"The body was of a female measuring 153 cms in length, moderately built and nourished. [ENTITY] was present all over the body. [ENTITY] was present over the back. Face and upper part of the chest and neck were congested. Blood stained froth was present at the nostrils."
I found the following external injuries:-
1. Pressure abrasion was present over the face below the right eye, measuring 4 cms x 2 cms extending from the lateral canthus to the middle of the right eye, 0.5 cms below the eye.
2. Pressure abrasion extending from the root of the nose to 2 cms below the lower lip, measuring 7 cms x 6 cms was present.
3. A contusion was present over right side of upper lip, measuring 2 cams x 1 cm.
4. A contusion was present over right side of upper lip, measuring 2 cms x 1 cm.
5. A contusion was present over the middle of lower lip, measuring 1 cm x 0.5 cms.
All the above abrasions were red in colour.
On dissection of the said body I noticed the following Internal injuries:-
BRAIN : It was congested and cut section revealed multiple petecheal haemorrhages.
The lung and the heart surface revealed multiple patecheal haemorrhages. Cut section of both lungs exuded dark coloured fluid blood.
Stomach contained 100 ml of yellow coloured fluid with no unusual smelll and normal mucosa.
On reflection of the neck there was blood extravasation present over the subcutaneous tissue over the left side, measuring 11 cms x 6 cms.
All other internal organs were intact and congested.
All the above external and internal injuries were ante-mortem in nature. They are sufficient to cause the death of the individual in the ordinary course of nature.
OPINION- I am of the opinion that death was due to asphyxia as a result of smothering".
14. In the light of this evidence, we agree with the finding of the Trial Court that the deceased died due to asphyxia as a result of smothering.
15. In order to prove the complicity of the accused in the murder of the deceased and to prove the time and place of occurrence, the prosecution has produced the direct evidence of PW-3 [ENTITY]-the younger sister of the deceased. It is seen from her deposition that on the date of her examination, she was 16 years of age. In her evidence, she has stated that during the year 2007, she was studying in 8th standard and the deceased was studying in 10th standard. Her grandfather PW-2 and mother PW-5 were carrying on vegetable vending business separately at Peenya II Stage. They used to leave the house at about 7.15 or 7.30 a.m. and used to return to the house at 10.00 p.m. She has specifically stated in her evidence that she has been knowing the accused for the last seven years as he used to visit their house often as he had relationship with her mother PW-5.
16. According to PW-3, the occurrence took place on 26.6.2007. On that day in the morning, her grandfather PW-2 and her mother PW-5 left the house in the morning for their business. Her grandmother PW-8 and her aunt also left the house in order to attend the obsequies ceremony and for her work respectively. She(PW-3) and deceased were only present in the house. At about 9.00 a.m., she was washing clothes outside the house. The deceased was sleeping in the room; at about 10.00 a.m., the accused came to their house, within 15 minutes thereafter, she heard cries from inside; hearing the same, she went inside and at that time, she saw the accused sitting on the chest of the deceased and pressing her neck with a pillow and when she questioned the accused, the accused assaulted her on her head and threatened her saying that he would kill her if she were to state about the incident to anyone. Immediately, she went to her mother PW-5 who was in the shop and reported to her as to what she has seen in the house. Immediately, her mother came to the house and on seeing the deceased, she raised cries; she asked PW-3 to bring PW-2 and hence she went to the shop of PW-2 and brought him to the house. PW-2 on seeing the deceased in the room brought her outside and laid her on a mat. Thereafter, on enquiry by PW-2, she revealed to him as to what all transpired till then. Thereafter, the police came near the house after about four hours and enquired her about the occurrence.
17. PW-3 is subjected to cross-examination and it is elicited that the shop of her mother and grandfather is situate at a distance of 25 ft from their house. She asserted in the cross-examination that on the previous day of the incident, all of them had gone to the death ceremony of their uncle at Chennapatna and as they were tired, she and the deceased did not go to school on that day. During the course of her cross-examination, she was confronted with a portion of her previous statement Ex-D1, English Translation thereof reads as follows: "Out of fear, I stood behind the door and was watching". She denied the suggestion that on the date of the incident, she has gone to the school as usual.
18. As could be seen from her evidence, PW-3 was an eye-witness to the incident and has given a natural account of the incident that took place in the house. There is no cross-examination whatsoever disputing the identity of the accused or the presence of the accused at the place of occurrence and with regard to the acts committed by him. Not a single contradiction is brought out in the cross- examination affecting the credibility of her version. Even Ex-D1 does not indicate that she was not an eyewitness to the incident. However, the learned counsel for the accused has strongly assailed the testimony of this witness contending that she was a child witness and her testimony cannot be believed as her presence at the spot of incident was doubtful.
19. In order to answer this contention, it may be necessary to refer to the evidence of other witnesses examined by prosecution to find out whether they have corroborated the testimony of PW.3. In this regard, it is worthwhile to note that PW.5 - the mother of the deceased has deposed in conformity with the prosecution case stating that at about 11.00 a.m., when she started to go to her house in order to prepare lunch, thinking that her two daughters might have left for the school, on the way, she met PW.3 who came running in a panic mood and told her that the accused is pressing pillow on the face of the deceased. Though the learned counsel has argued that this is a serious contradiction in the testimony of PW-5, but in appreciating the evidence of this witness, it is relevant to note that to this extent this witness was treated hostile by the prosecution. Significantly, in the cross-examination by the learned Public Prosecutor counsel, she has fully supported the case of the prosecution and has confirmed that her daughter PW.3 narrated the incident to her and has further admitted that she had developed intimacy with the accused and the same was objected to by the deceased which has prompted the accused to murder her daughter. No doubt it is true that PW.5 is not an eye witness to the incident but the above testimony lends full corroboration to the evidence of PW.3 with regard to the involvement of the accused in the incident.
20. It is also relevant to note that PW.2 has also corroborated the testimony of PW-3 stating that PW.3 came to his shop and took him to the house stating that the deceased has expired in the house and on coming to the house, he noticed the deceased lying on a cot in the room with her face upwards. He noticed bluish mark with compression on her neck and also below the eyes and on the forehead and he made enquiries with PW.3 [ENTITY] as to how the deceased died and PW.3 told him that the accused smothered the deceased in the room and when she questioned him, the accused threatened her with dire consequences and also assaulted on her head. PW.2 is the complainant and even in the complaint, he has narrated the incident as stated by PW.3 which again lends credence to the testimony of PW.3. The medical evidence produced by the prosecution also corroborates the testimony of PW.3 with regard to the injuries found on the deceased, thus establishing the case of the prosecution. The presence of the accused in the house of PW.2 on the date and time of the incident is spoken to by PW.4 whose evidence has also remained unshaken.
21. The Trial Court has believed the evidence of PW.3 as well as the evidence of PW.2, PW.4, PW.5 and PW.10 and has held the accused guilty of the offence. Though it is argued by the learned counsel for the accused that the testimony of PW.3 is tainted on account of the delay in lodging of the complaint and her testimony has to be discarded as a tutored one, yet on going through the entire evidence and the circumstances brought out in the evidence, we find the testimony of PW.3 fully reliable and trustworthy. As already noted above, PW.3 was studying in VIII standard on the date of the incident and she was aged about 16 years on the date of her examination in the Court. She was not an infant or imbecile rather an adolescent who could very well understand the nature of the evidence given by her before the Court. She has been administered oath and has successfully faced the cross-examination. It has come in evidence that on the date of the incident, she was washing clothes and she herself ran to the shop of PWs.2 and PW-5 and brought them to the house and narrated the incident.
22. In appreciating the evidence of PW.3, it is also relevant to note that the accused was not a stranger to her. There is overwhelming evidence to show that the accused was a regular visitor to the house. The witnesses examined by the prosecution though are related to each other, they have unequivocally stated before the Court that the accused though a married person, had developed illicit relationship with PW.5. PW.5 has even gone to the extent of stating that the accused was visiting their house once in three days and he was even staying in their house and supporting their family. It is significant to note that even during his examination under [SECTION] of [ACT], the accused has stated that he was knowing the family of the deceased; PW.2 and PW.5 were vegetable vendors by profession and they were carrying on their business separately at Peenya II Stage. The accused has also admitted that the husband of PW.5 had deserted her and in the course of carrying on vegetable vending business, he got introduced to PW.5 and later developed illicit intimacy with her and he was visiting their house once in a week. If this evidence is analyzed in the background of testimony of PW.3, without any hesitation it could be said that PW.3 is a natural witness and her identification of the accused and the circumstances spoken by her implicating the accused are beyond challenge. She has given true and consistent account of the incident.
23. The evidence on record does not indicate that PW-3 had any reason to falsely implicate the accused. Not a single circumstance has been brought out in the entire evidence to show that she was a tutored witness as contended by the defence counsel. On the other hand, the evidence discloses that her mother and grandfather believed her version without reservation and the complaint is lodged on the basis of the events narrated by her, which itself lends further corroboration to her testimony. Her conduct also inspires confidence to hold that she was an eyewitness to the incident. There is intrinsic truth in her testimony. She has narrated the incident with the simplicity of a child without any embellishment or exaggeration. The discrepancies highlighted by the defence counsel relates to the aftermath of the incident and not to the core case of the prosecution. Even otherwise absolute consistency in deposition cannot be expected from a person of the tender age as that of PW-3. As long as the circumstances brought out in the case do not indicate that she was either tutored or that she was under the influence and control of her parents or other relatives, there is no reason to disbelieve her testimony.
24. The law recognizes the child as a competent witness. In the instant case, as already stated above, PW-3 was 14 years of age on the date of the incident and therefore her evidence cannot be dubbed as that of a child witness. Even assuming that she was a child in the eye of law, the law requires the evidence of a child to be evaluated carefully because he or she can be an easy prey to tutoring. In such cases, Court is required to look for adequate corroboration from the other evidence. In the instant case, we have carefully and cautiously evaluated the testimony of PW-3 and we are convinced that she is a reliable and trustworthy witness, whose testimony can be made the sole basis for the conviction of the accused.
25. The learned counsel for the accused has strenuously contended that in the instant case, FIR is lodged after an inordinate delay of 10 hours which has been made use of by the prosecution to concoct a false case against the accused. It is the submission of the learned counsel that the incident is stated to have taken place at about 11.15 a.m., whereas the complaint came to be recorded only at 9.30 p.m. in the night.
26. We have perused the material in this regard. No doubt it is true that the incident has taken place at about 11.15 a.m. on 26.6.2007 and the complaint Ex.P2 came to be recorded by PW.12 only at 9.30 p.m., on the same day, but in view of the positive evidence produced by the prosecution in proof of the incident and the involvement of the accused in the murder of the deceased, in our opinion, the delay whatsoever looses its significance. The object of insisting upon prompt lodging of the report to the police is to avoid the danger of embellishment or introduction of exaggerated or coloured version as a result of deliberation and consultation.
27. In the instant case, as rightly submitted by the learned State Public Prosecutor, the accused was known to the family of the deceased and it is an admitted fact that the mother of the deceased herself was carrying on illicit relationship with the accused. Therefore, it is probable that to protect the accused from prosecution, the family members of the deceased were hesitant to lodge a complaint against the accused. It has come in evidence that only on receipt of the phone call, PW.12 the Police Inspector of Rajagopala Nagar Police Station rushed to the spot of occurrence and reduced into writing the oral complaint of PW.2. What is important to be noted is that PW.2 has narrated the events to PW-12 as stated to him by PW.3 without any loss of time. There is nothing in the entire evidence to suggest that from 11.15 a.m. till the lodging of the complaint at 9.30 p.m., there was any deliberation or consultation either between the family members or any outsiders with regard to the incident in question. In this context, social milieu and the family background of the victim's family may also have a bearing. Undisputedly, PW.2 and PW.5 were vegetable vendors, hailing from poor strata of society. Their surviving daughter was studying in VIII standard. There is nothing to show they had any assistance or advice from any quarters. What is important to be noted is that when the police arrived to the spot, PW.2, PW.5 and the inmates of the house as well as neighbours have made a clean breast of the incident and have squarely implicated the accused without suppressing any details of the incident. Therefore, in the fact situation of the present case, the delay in lodging the FIR, in our opinion, does not militate against the case of the prosecution nor does it weaken the testimony of the eye witness establishing the culpability of the accused. Further as the case of the prosecution is proved by independent testimony, the question of motive becomes more or less academic. The decisions cited by the learned counsel for the appellant/accused are not applicable to the facts of this case.
28. The Trial Court has appreciated all the above facts and circumstances and has come to the proper conclusion that the accused committed the murder of the deceased by smothering with a pillow. The evidence discussed above clinchingly establishes that to do away with the deceased who was objecting his illicit relationship with PW.5, the accused resorted to the ghastly act of murdering the deceased. The evidence adduced by the prosecution establishes the guilt of the accused beyond reasonable doubt. We do not find any error or infirmity in the order of Trial Court.
Accordingly, the appeal fails and the same stands dismissed.
JUDGE SD/-
JUDGE Bss/mn/-