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2024. KHC:35175-DB CRL.A No.1746 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE30H DAY OF AUGUST, 2024 R PRESENT THE HON'BLE MR JUSTICE H.P.SANDESH AND THE HON'BLE MRS JUSTICE K.S. HEMALEKHA CRIMINAL APPEAL No.1746 OF2018BETWEEN:
1. RANGANATHA T., S/O THIMMAPPA, MAJOR, AGRICULTURIST, ADARISINGENAHALLY VILLAGE, HOSADURGA TALUK, CHITRADURGA DISTRICT-572101. ... APPELLANT (BY SRI G.K.BHAT, SENIOR COUNSEL FOR SMT. SUMA HIREBIDARI, ADVOCATE) AND:
1. THE STATE OF KARNATAKA, BY OFFICER-IN-CHARGE OF POLICE STATION, HOSADURGA, REPRESENTED BY SPP, HIGH COURT BUILDING, BENGALURU-560001. ... RESPONDENT (BY SMT. RASHMI JADHAV, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION3742) OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENTOF CONVICTION DATED2307.2018 AND
ORDEROF SENTENCE DATED2407.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN S.C.NO.15/2015 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION302OF IPC. THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENTON2507.2024, COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING: - 2 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and HON'BLE MRS. JUSTICE K.S.HEMALEKHA CAV
JUDGMENT(PER: HON'BLE MR. JUSTICE H.P.SANDESH) The factual matrix of the case of the prosecution before the Trial Court is that on 22.08.2014, the complainant Sri T. Manjappa, resident of Adavisangenahalli, lodged a complaint alleging that the accused himself called him and informed him that he committed the murder of his wife. On the information given by the accused, immediately he rushed to the Village and found the dead body of his wife. He has lodged the complaint in terms of Ex.P.1 and the police i.e., P.W.17, who has received the complaint, registered the case and issued the FIR as per Ex.P.25 and immediately he rushed to the spot and conducted the spot mahazar in terms of Ex.P.2 and seized M.O.1 and M.O.2 at the spot and the police have investigated the matter and filed the charge-sheet against the appellant/accused for the offence punishable under Section 302 of IPC.
2. The prosecution in order to prove the case examined P.W.1 to P.W.19 and also got marked the documents - 3 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 at Exs.P.1 to 36 and M.O.1 to M.O.8. On the closure of the prosecution side, the accused has not adduced any oral evidence and only relevant portion of the statement of P.W.2 is got marked as Ex.D.1. The Trial Court recorded the statement of the accused under Section 313 of Cr.P.C and given opportunity to both the prosecution as well as the appellant/accused to address their arguments. Having heard the respective learned counsel and on perusal of the material on record, the Trial Court convicted the accused for the offence punishable under Section 302 of IPC and sentenced the accused to undergo imprisonment for life for the offence punishable under Section 302 of IPC and also directed to pay fine of Rs.30,000/-. In default of payment of fine, he shall further undergo simple imprisonment for a period of six months. It is also ordered to give set off to the accused for the period already undergone in judicial custody as per Section 428 of Cr.P.C.
3. Being aggrieved by the judgment of conviction, life sentence and fine, the present appeal is filed before this Court.-. 4 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 4. The main grounds urged in the appeal before this Court is that the complaint was lodged at 4.30 p.m. on 22.08.2014 by the complainant, who is examined as P.W.1 and FIR is registered in terms of Ex.P.25. The endorsement made by the learned Magistrate is that he has received the FIR along with the complaint through H.C. of Hosadurga Police Station on 22.08.2014 at 9.00 p.m. But it is contended that endorsement on Ex.P.1 is dated 23.08.2014. P.W.1 says that P.W.2 Rangappa has written the complaint for his convenience. P.W.2 Rangappa has deposed that the police came and on the instructions of the police, he wrote the complaint Ex.P.1 and also admits that he has not written the complaint as stated by P.W.1. It is also contended that P.W.17 categorically admitted that the distance between the police station of Hosadurga and house of the Judge is about 1 km. Even if he goes by walk, 10- 15 minutes is enough. He did not enquire with the P.C. who took the FIR as to why there was a delay inspite of FIR was dispatched at 5.25 p.m. and acknowledging the FIR at 9.00 p.m. He admits that he has not sent Ex.P.1 with Ex.P.25. It is contended during the course of argument that the Court below has erred in convicting the accused/appellant for the offence - 5 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 punishable under Section 302 of IPC inspite of the prosecution has not established its case and there is no direct evidence and the case is rest upon circumstantial evidence and no chain of link is established.
5. The case of the prosecution is that on 22.08.2024 at about 1.25 p.m. in the house of P.W.1, the accused committed the murder of the wife of P.W.1 with an intention to take away the life and he slit her neck with the help of knife and the Trial Court jumped to the conclusion that the prosecution has proved the case beyond reasonable doubt. The very conclusion is erroneous. It is also contended that the case of the police is that the incident was taken place at 1.25 p.m. on 22.08.2014. The village and the police station are at a distance of 10 kms. As admitted by P.W.17, there was a delay and the delay has not been explained and the same has not been taken note of by the Trial Court. It is contended that the Trial Court erred in over-looking the evidence of P.W.1 and P.W.17 and the Trial Court fails to take note of the evidence of P.W.1 and erroneously comes to the conclusion that the evidence of P.Ws.2, 3 and 4 corroborates with the evidence of P.W.1. The very approach of the Trial Court is erroneous.-. 6 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 6. The learned counsel for the appellant/accused in his argument would vehemently contend that the mobile was not seized. The learned counsel contend that all the witnesses are hearsay witnesses. The case of the prosecution is that the children of the accused are pursuing education and none of the witnesses of children were examined and in the absence of any evidence of children of either the complainant or the victim, the case of the prosecution cannot be believed. The prosecution theory was accepted without evaluating the evidence available on record. No material is brought out before the Trial Court to bring the accused within the parameters of law. The learned counsel contend that the appellant has already spent 6 to 7 years in jail and taking note of the contradictions in the evidence of the prosecution witnesses, benefit of doubt goes in favour of the appellant and hence he may be acquitted.
7. Per contra, the learned Additional SPP appearing for the respondent State would contend that there is a motive for the accused to commit the murder, since the victim had refused to continue illicit relationship with the accused as the same was within the knowledge of the villagers. The witnesses also speaks with regard to the illicit relationship of the appellant - 7 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 and the victim. The learned counsel submits that there is an extra judicial confession by the accused and he himself declared in the presence of P.Ws.3, 5, 6, 9 and 12 that he killed the victim and the evidence of all of them is very consistent. The learned counsel contend that Ex.P.36 FSL report is very clear that the cloth of the accused is stained with blood and there is no explanation on the part of the accused with regard to incriminating evidence when the same was put to the accused while recording 313 statement. The learned counsel contend that the recovery witnesses also supported the case of the prosecution regarding seizure of weapon which was used to commit the murder and the same was seized at the instance of the accused only. The learned counsel contend that Ex.P.35(a) is very clear that call details are also collected and the same discloses that at 1.26 p.m. immediately after committing the murder, the accused had called P.W.1. The case of the complainant is also that the accused himself had called and informed him that he had committed the murder. The injuries tally as claimed by the prosecution having considered the post mortem report which is marked as Ex.P.22. The opinion of the doctor which is marked as Ex.P.24 is very clear that M.O.5 - 8 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 knife could cause the nature of injuries as mentioned in Ex.P.22. The Trial Court taken note of the evidence of P.W.18, who is the Investigating Officer, who speaks about the document Ex.P.35(a) and also recovery at the instance of the appellant in terms of evidence of P.W.11 and P.W.13. The prosecution has made out the case and the Trial Court rightly convicted the accused and sentenced him for life imprisonment and it does not require any interference. 8 In reply to the arguments of the learned Additional SPP, the learned counsel for the appellant would contend that when the case is rest upon the circumstantial evidence and when the circumstances are not been established, the appellant is entitled for acquittal.
9. Having heard the learned counsel for the appellant and the learned Additional SPP appearing for the respondent State, the points that would arise for the consideration of this Court are: (i) Whether the Trial Court committed an error in coming to the conclusion that the prosecution has proved beyond reasonable doubt that on 22.08.2024 at about 1.25 p.m. in the house - 9 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 of P.W.1 at Adavisangenahalli, Hosadurga Taluk, the accused/appellant with an intention to commit the murder of Ambika, wife of the complainant, slit her neck with the help of a knife, as a result, she suffered grievous bleeding injuries and succumbed to the injuries and knowingfully and intentionally the appellant caused her death and thereby committed an offence under Section 302 of IPC and the trial Judge committed any error in convicting him and sentencing him for life imprisonment?. (ii) What order?.
10. Having heard the respective learned counsel and also on perusal of the material available on record, this Court has to re-appreciate both oral and documentary evidence placed on record as to whether the appellant has made out a ground for acquittal or whether the judgment of conviction of the Trial Court requires to be confirmed.
11. Now this Court has to analyze both oral and documentary evidence placed on record. Before analyzing the case of the prosecution, first this Court has to take note of whether the death is on account of homicidal. Hence, this - 10 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 Court has to look into Ex.P.22 post mortem report. On perusal of Ex.P.22, the victim was aged about 30 years and found incised wound present at anterior part of the neck measuring 10 cm. x 6 cm. Trachea is cut, sternocleudomastoid muscles is cut and wound is in the middle of both sides of the trachea and is below the thyroid cartilage. Sharp and clean cut is present, the wound is deep up to the vertebrae. No hesitation cut or other wound in the body. No haemotoma present at neck, the wound is swollen red and adherent with blood. No wounds present at hands. Jugular veins are cut, carotid artery on both sides are cut. Oesophagus is cut. Vertebra is intact and blood clots present over the neck and sides of the neck. The doctor also opined that cause of death is due to cardio-respiratory failure resulting from haemorrhage shock due to homicidal injury to carotid artery and trachea. Time since death 6 hours to 12 hours.
12. Having considered the documentary evidence of Ex.P.22, this Court has to consider the evidence of the doctor P.W.16. The doctor in his evidence has reiterated that he conducted the post mortem on 22.08.2014 in between 9.35 p.m. to 11.35 p.m. at mortuary of the hospital. He has also - 11 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 spoken about the nature of injuries. He gave the opinion in terms of Ex.P.22. It is also his evidence that the Investigating Officer forwarded a requisition with a request to examine the knife used in the crime for opinion. The said requisition is marked as Ex.P.23. He had examined M.O.5 knife and given opinion in terms of Ex.P.24. This witness was cross-examined. In the cross-examination, a suggestion was made that he gave wrong opinion only on the basis of information given by the police and the same was denied. It is suggested that he has not seen M.O.5 knife and given wrong opinion and the same was denied. However, he says that he has not received any fingerprint opinion in respect of M.O.5 knife. He categorically says that he saw M.O.5 knife without handle. In the cross- examination of P.W.16, nothing is elicited from the witness that M.O.5 knife could not cause the injuries which are found in the post mortem report.
13. Having considered the evidence of P.W.16 doctor and also looking into the nature of injuries mentioned in Ex.P.22 post mortem report, except a suggestion that he did not examine the weapon M.O.5, nothing is elicited from the mouth of P.W.16. The opinion of the doctor and the nature of - 12 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 injuries mentioned in the post mortem report is incised wound present at anterior part of the neck measuring 10 cm. x 6 cm. and also the evidence of the doctor that trachea is cut, sternocleudomastoid muscles is cut and wound is in the middle of both sides of the trachea and is below the thyroid cartilage. The doctor has spoken about the nature of injuries which have been mentioned in Ex.P.22 and hence it is a clear case of homicide and hence this Court forms an opinion having re- evaluated the evidence of doctor P.W.16 as well as documentary evidence of Ex.P.22, that it is a case of homicidal.
14. Now keeping in view the contentions urged by the learned counsel for the appellant, we have to examine whether the material available on record clinches the issue whether the appellant has committed the murder or not. No doubt, the case is rest upon the circumstantial evidence and this Court has to examine whether chain link is established or not. In a case of circumstantial evidence, there must be a chain link and each link has to be established.
15. Now this Court would like to rely upon the material available on record. P.W.1 is the complainant and his evidence - 13 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 is that he had received a phone call from the accused himself. Immediately after committing the murder, the accused had called him and told him that he committed the murder of his wife. He had lodged the complaint in terms of Ex.P.1, wherein he has stated that when he was not in the house, the accused was insisting his wife to co-operate with him for illicit relationship and the same was informed to him by his wife. The accused used to go to garden land when his wife was alone and he had witnessed the same and he told the accused not to continue the same and on enquiry, his wife told him that he had sexual intercourse forcibly with her. It is also his case that when he was at Hosadurga, the accused met him on the road in a motorbike and saw him in an anger mood. The accused while informing that he committed the murder, he told that he enjoyed with his wife for a period of two years. Immediately he rushed to the spot and found the dead body of his wife and lodged the complaint. This witnesses was cross-examined in length.
16. No doubt, the learned counsel for the appellant also brought to the notice of this Court that the scribe of the complaint wrote the complaint as his convenience as admitted.-. 14 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 It is elicited from the mouth of P.W.1 as to why the accused had committed the murder and also he admits that he does not know what is written in Ex.P.2. The case of the prosecution is also that they have collected the mobile data and in terms of mobile data Ex.P.35(a), phone calls of the accused is verified and accused mobile number is 7760339775 and for a period from 01.04.2014 to 23.08.2014 verified the same and he had called the complainant to his mobile No.9535269484 and the same is spoken by P.W.18. There was a call on 22.08.2014 in respect of the very same number of the complainant by the accused at 13:26 hours. It is the case of the prosecution that murder was committed in between 12:00 p.m. to 1:30 p.m. It is the specific evidence of P.W.1 that the accused himself called and told him about committing the murder. Hence, there is a clear link between the information given to the complainant by the accused himself that too over phone and the documentary evidence clinches the issue of prosecution which establishes the primary link. The complaint is also corollary to the claim made by the prosecution in terms of complaint Ex.P.1. There is no dispute with regard to phone call is concerned and nothing is - 15 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 elicited from the mouth of P.W.18 to disbelieve the document of Ex.P.35(a).
17. The other clinching evidence to establish the case of the prosecution is that P.W.2 is the scribe of the complaint and in his evidence he reiterated that he wrote the complaint in terms of Ex.P.1 and he also identifies that the complainant had signed the complaint in his presence. It is also his evidence that the contents of Ex.P.1 is explained to P.W.1. It is also his evidence that when he rushed to the house of the complainant in between 2.00 p.m. to 3.00 p.m., there were 50 to 100 people. He categorically admits that when he went to the spot, the police had not yet arrived and thereafter only the police came to the spot. He admits that in the complaint he has not mentioned that he wrote the complaint as stated by P.W.1. He admits his signature in Ex.P.1. In the cross-examination of P.W.2, except eliciting that he did not mention in the complaint that he wrote the same as per P.W.1, nothing is elicited and his evidence is very clear that when he came to know about the incident of murder, immediately he rushed to the house at around 2.00 p.m. to 3.00 p.m. and found people near the house. It is suggested that he wrote the complaint as stated - 16 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 by the police and the said suggestion was denied. He categorically says that he wrote the complaint as stated by the complainant and there is no any contra evidence as to the case of the prosecution.
18. The other circumstances with regard to proving of the case of the prosecution is that P.Ws.3, 5, 6, 9 and 12 speaks about extra judicial confession. It is the case of the prosecution that immediately after committing the murder, the accused went and declared that he had killed the victim and by that time, all these witnesses were sitting in a platform (katta). At around 1.30 p.m. when they were sitting by the side of Hosadurga road, the accused came from the middle of the village and told that he committed the murder and he proceeded towards Hosadurga in a motorbike. The evidence of P.Ws.3, 5 and 6 is consistent. Apart from that, P.W.17, who is the Station House Officer, who had received the complaint, his evidence is clear that the accused went to the police station and he himself revealed that he committed the murder of the victim and he made an extra judicial confession before him. The Trial Court while considering the evidence of P.Ws.3, 5, 6 and 17 taken note of there is no enmity between the accused - 17 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 and these witnesses. Their evidence is also consistent and also spoken about illicit relationship between the deceased and the accused and having advised the accused not to continue the same and their evidence is very clear with regard to the allegation of illicit relationship. The Court also cannot expect any direct evidence with regard to the illicit relationship between the deceased and the accused.
19. The Trial Court also relied upon the judgment of the Apex Court in the case of SUDAM ALIAS RATHUL KANIRAM JADHAV v. STATE OF MAHARASHTRA reported in 2011 CRI.L.J.
4240, wherein it is held that the accused making extra-judicial confession to his ex-wife and one other confessing that he has killed his wife and children because of harassment meted out by deceased wife and the same was the motive to commit offence.
20. The Trial Court also relied upon the principles laid down by the Apex Court in the judgment in the case of RAJPUT JABBARSINGH MALAJI v. STATE OF GUJARAT reported in 2011 CRI.L.J.
4361, wherein the accused alleged to have caused fatal injuries to deceased with axe and the - 18 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 evidence fully corroborating evidence of wife and also same is corroborated by FSL report of axe and scarf recovered on disclosure by accused and complicity of accused stands proved.
21. In the case on hand, it is the case of the prosecution that immediately after apprehending the accused, he took the panchas and showed the knife which was used for committing the murder. The witness P.W.11 speaks about the recovery of the knife by drawing mahazar in terms of Ex.P.13. He categorically says that when he was in the police station in connection with other work, he was taken to the spot where the weapon was recovered at the instance of the accused. The accused was in the police station and one more pancha C.W.22 was also part of the panchas and police drew the mahazar in terms of Ex.P.10, wherein they recovered M.O.3 blood stained shirt and M.O.4 blood stained baniyan of the accused and also obtained the clippings as per Ex.P.11. It is his evidence that the accused took all of them to the house of P.W.1 and showed the knife which was hidden in a bucket and the same was recovered and he identifies M.O.5 knife and M.O.6 handle of knife and mahazar was drawn in terms of Ex.P.13 and signature was taken to the mahazar in terms of Ex.P.13(a). He - 19 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 was cross-examined in length. He says that the police have not given any notice to the panchas and he does not know whether notice was given to C.W.22. He admits that he did not read Exs.P.10 and 13 since he is an illiterate and the police have not measured M.O.5 knife. He identifies the photographs at Exs.P.14 to 17 and he categorically admits that in his presence the baniyan of the accused was seized, but not seized the lungi and baniyan is ready made. It is suggested that M.O.3 and M.O.4 not belongs to him and the same was denied. It is suggested that the photographs are not taken and the same was denied. He says that the knife and handle were there in the bucket and both are separated. The police did not measure the said bucket. He categorically says that within two days of the incident, they went to the house of P.W.1. A suggestion was made that the accused has not produced the same and the same was denied. It is important to note that P.W.11 supported the case of the prosecution regarding recovery of knife and clothes belonging to the accused.
22. It is important to note that the clothes which were seized were sent to the FSL. FSL report is marked as Ex.P.36 and on perusal of Ex.P.36, it is clear that the seized articles - 20 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 i.e., shirt, baniyan and M.Os.5 to 7 are stained with blood and clothes and weapon are recovered at the instance of the accused. The evidence of P.W.11 is credible and there is no explanation on the part of the accused in 313 statement regarding M.Os.5 to 7 are stained with human blood. The human blood is found in the cloth and bangles belonging to the deceased. The blood stains found in the clothes of the accused M.Os.5 to 7 are ‘A’ group blood. When the blood stains are found on the clothes of the deceased as well as on the clothes of the accused, there is no explanation on the part of the accused. The FSL report corroborates with regard to the involvement of the accused. The other circumstances with regard to the recovery of knife and clothes belongs to the accused establishes that there is a chain link in respect of each of the allegations made by the prosecution. The learned counsel during the course of argument made a submission that there is no any clinching evidence against the accused and the complainant P.W.1 might have killed his wife since he had witnessed illicit relationship of his wife with the accused and the said contention cannot be accepted for the reason that the accused himself had called and informed the complainant at - 21 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 1.26 p.m. that he had killed his wife. It is the case of the prosecution that murder was taken place during that time and also call details is clear that at 1.26 p.m. the accused himself called the complainant and informed about the murder.
23. The other circumstance of panchayat is also proved by examining P.W.9 and P.W.12 and their evidence is consistent. The evidence of P.W.18 corroborates with the evidence of P.W.11, who is the mahazar witness to ExS.P.10 and 13. P.W.18 says that the accused made the statement that he will show the knife that he has kept in the house of P.W.1 and his voluntary statement is marked as Ex.P.31 i.e., only portion with regard to recovery is concerned. He also identified M.O.3 and M.O.4 which were seized and drawing of mahazar in terms of Exs.P.10 and 13 and so also the photographs which were taken at the time of seizure. Though this witness is the Investigating Officer, his evidence cannot be disbelieved only on the ground that he is a police witness. In the cross-examination, he admits that he did not send M.O.5 to the fingerprint expert, but he categorically says that he has sent the same for FSL and FSL report in terms of Ex.P.36 corroborates with regard to the recovery and sending the same - 22 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 to FSL and FSL report also clear that blood stains of the deceased are found on the clothes of the accused. A suggestion was made that the accused did not make any phone call to P.W.1 and the same was denied, since the witness relies upon the document Ex.P35. The evidence of P.W.18 also corroborates with regard to the recovery is concerned at the instance of the accused.
24. With regard to recovery is concerned, this Court would like to rely upon the judgment of the Apex Court in the case of UDAY KUMAR v. STATE OF KARNATAKA reported in 1998 Cri.L.J.
4622, wherein it is held that when the property has been recovered at the instance of the accused, when the chain of circumstances completed, conviction of accused is proper. The Court has to take note of the evidence of P.W.11 and seizure of M.O.5 knife and M.O.6 handle of knife, which has been recovered by the police at the instance of the accused and we have already pointed out the portion of voluntary statement given by the accused which is marked as Ex.P.31 and when the accused leads himself, it attracts Section 27 of the Evidence Act and the same is admissible in evidence and the recovery of - 23 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 property is also an incriminating evidence against the accused and the recovery also establishes the case of the prosecution.
25. This Court would like to rely upon the judgment in the case of BHURA ALIAS SAJJAN KUMAR v. STATE OF MADHYA PRADESH reported in 1999 Cri.L.J.
4561, wherein it is held that when the property has been recovered at the instance of the accused, the information furnished by the accused to the police officer is admissible in evidence with regard to the portion of voluntary statement as regards recovery.
26. This Court would like to refer to the Apex Court in the judgment in the case of RAMESHBAI MOHANBHAI KOLI AND OTHERS v. STATE OF GUJARAT reported in 2010(4) Crimes 325 held that discovery of weapons of an offence and the respective places from where the recoveries are affected were exclusively within the knowledge of the appellants which could not have been affected by the investigating agency in the absence of the disclosure statements made by the accused and the same is a vital evidence for conviction.-. 24 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 27. The Apex Court in the judgment in the case of BHAGWAN DASS v. STATE (NCT) DELHI reported in AIR2011SC1863held that disclosure of evidence and statement given by the accused who led to discovery of the weapon which was used for committing the murder and this disclosure was admissible as evidence under Section 27 of the Evidence Act.
28. This Court would like to rely upon the judgment of the Apex Court in the case of RAM GOPAL S/O MANSHARAM v. STATE OF MADHYA PRADESH reported in (2023) 5 SCC534 wherein it is held that corroborative evidence with regard to recovery of weapon (axe) alleged to have been used in commission of crime from petitioner, further substantiating case of prosecution. In such facts and circumstances of case, upholding by High Court of conviction of petitioner accused under Section 302 of IPC, confirmed.
29. We have also taken note of the extra judicial confession made by the accused. P.Ws.3, 5 and 6 have categorically stated that when they were sitting in the platform (katta), the accused himself came and declared that he killed the victim. The Court has to take note of the voluntary act of - 25 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 the accused that immediately after committing the murder he intimated the same to the complainant P.W.1 and thereafter at 1.30 p.m. he went and declared in the village in the presence of P.Ws.3, 5 and 6 that he had committed the murder and extra judicial confession supports the case of the prosecution. We have also pointed out that the evidence of P.W.17, though he is a police witness, his evidence is clear that the accused went to the police station and he made voluntary confession statement in the police station with him that he committed the murder. Though confession made before the police officer is hit by Section 25 of the Evidence Act, having taken note of the extra judicial confession made before P.Ws.3, 5 and 6, the evidence of P.W.17 cannot be thrown, since he also intimated committing the murder to the husband of victim i.e., P.W.1 immediately after committing the murder. Though extra judicial confession is weal piece of evidence, but other evidence available on record corroborates the same.
30. P.W.9 in his evidence says that the accused used to visit the house of P.W.1 and P.W.1 Manjappa called panchayat and he participated in the said panchayat. P.W.5, P.W.6 and the complainant told the accused not to have any illicit - 26 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 relationship with the wife of P.W.1 and all of them advised, but the accused threatened P.W.1 and his wife and immediately within 8-10 days of the incident, murder was taken place. He also says that P.W.5 and P.W.6 were sitting near the katta in between 1.30 p.m. to 2.00 p.m. and the accused came and declared that he committed the murder of the victim and went towards Hosadurga and immediately they rushed to the spot and found the dead body. The evidence of P.W.17 corroborates that he came to the police station of Hosadurga and made the statement that he committed the murder. It is suggested that P.Ws.1, 5 and 6 have not advised the accused and the said suggestion was denied. No doubt, he admits that he did not witness the illicit relationship and we have already pointed out that with regard to the illicit relationship is concerned, the Court cannot expect any direct evidence. P.W.9 speaks about the panchayat was conducted when they came to know about the illicit relationship. P.W.12 also speaks corollary to the evidence of P.W.9 regarding conducting of panchayat. In the cross-examination of P.W.12, no doubt he admits that he did not witness the illicit relationship, but he says that the accused was visiting the house of the victim frequently and hence they - 27 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 suspected. He also categorically says that before the incident, panchayat was held, but he cannot tell the week and he admits that while making the statement he did not inform the police that he himself, P.W.5 and P.W.6 advised the accused. Except this answer, nothing is elicited from the mouth of P.W.12.
31. Having considered both oral and documentary evidence placed on record, the prosecution has established the chain link for committing of the murder i.e., the accused himself intimated the complainant P.W.1 that he committed the murder of his wife and immediately the complainant rushed to the spot and gave the complaint in terms of Ex.P.1. Apart from that, Ex.P.35 is clear about the call made by the accused to the P.W.1 after committing the murder. The call details and mobile number of the accused as well as P.W.1 and timings tallies with each other and other link is also established. Apart from that, the evidence of prosecution witnesses P.Ws.3, 5 and 6 have categorically deposed before the Court that the accused immediately after committing the murder came out and declared in their presence that he committed the murder and went to the police station and made the confession statement before P.W.17 Station House Officer and he immediately rushed - 28 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 to the spot and conducted the mahazar in terms of Ex.P.2. The extra judicial confession is also established by the prosecution.
32. The evidence of P.W.9 and P.W.12 is clear with regard to when the illicit relationship between the deceased and the accused was noticed, panchayat was conducted and both of them spoken about the panchayat was made in the presence of P.Ws.1, 5 and 6 and in the presence of P.W.9 and 12 and given advise and their evidence is clear that within 8-10 days of advice, murder was committed and other chain link is also established. It is important to note that recovery is made at the instance of the accused, particularly M.Os.5 to 7 and the evidence of P.W.11 is credible and though minor discrepancies are found, the same will not go to the very root of the prosecution and the evidence of P.W.18 is clear with regard to the recovery is concerned. Section 27 of the Evidence Act is also pressed into service for recovery of property, particularly incriminating evidence through accused i.e., M.O.5 knife which was used for committing the murder. The evidence of P.W.16 doctor is clear that M.O.5 knife could cause the nature of injuries found in Ex.P.22 post mortem report.-. 29 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 33. The case of the prosecution is also that the victim had refused to co-operate with the accused for sexual act and hence there is a motive for the accused to commit the murder. Having considered the material available on record, the witnesses have spoken about the illicit relationship between the accused and the victim and thereafter panchayat was held and the victim refused to co-operate with the accused, as a result, the accused committed the murder. The motive is also established and other link of circumstantial evidence is also established by the prosecution. The contention that there is a delay in sending FIR to the Court is not explained cannot be a ground to extend the benefit to the accused since he himself called and informed his act to P.W.1 which is evident as per Ex.P.35(a) call details.
34. Having considered all these material available on record, chain link is established. Though the case is rest upon the circumstantial evidence, each of the circumstances establish that the accused only committed the murder. The contention of the learned counsel for the appellant that P.W.1 might have committed the murder, since he had noticed the illicit relationship between his wife and the accused, cannot be - 30 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018 accepted and ample material is available against the accused that he only committed the murder and after committing the murder he himself declared with P.Ws.1, 5, 6 and 7 and recovery is also made at the instance of the appellant. Hence, we do not find any force in the contention of the learned counsel for the appellant that benefit of doubt goes in favour of the accused and there is no such benefit of doubt in the present case to come to other conclusion that the prosecution failed to establish the case against the accused. The Trial Court having considered the ample material available on record, given anxious consideration and hence we do not find any error committed by the Trial Court in convicting the accused for the offence punishable under Section 302 of IPC and hence there is no merit in the appeal to come to other conclusion. The appeal is liable to be dismissed and accordingly we answer the point for consideration in the negative.
35. In view of the discussions made above, we pass the following: - 31 - NC:
2024. KHC:35175-DB CRL.A No.1746 of 2018
ORDER(i) The criminal appeal is dismissed. (ii) The judgment of conviction of the appellant for the offence punishable under Section 302 of IPC and the sentence is confirmed. Sd/- (H.P. SANDESH) JUDGE Sd/- (K.S.HEMALEKHA) JUDGE MD List No.:
19. Sl No.: 1