B. Padmaraj, J.
1. Heard the arguments of the learned SPP as well as the learned Counsel for the convicted accused at a considerable length and carefully perused the entire case papers in detail including the impugned judgment made by the Trial Court with their assistance. We have also carefully perused the several decisions relied upon by the learned Counsel on either side.
2. The appellant Talawara Venkatappa who is the sole accused in the case, aged about 25 years, a shepherded by profession and resident of Loleshwar, has been convicted by the Trial Court under Section 302 of IPC for committing the murder of his wife Smt. Manjamma, aged about 20 years on 04.12.1993 at about 3 p.m. at the dwelling house of PW-1/Smt. Devakka, the elder sister of the deceased at Kyarakatte village by committing assault on the deceased with a wooden implement called 'thattu mani' (an wooden implement used of leveling the earthen floor) on her face and by throttling or squeezing her neck, when the deceased had been staying in the house of her elder sister Smt. Devakka/PW-1; the deceased being pregnant carrying 6 months of pregnancy.
3. On the question of sentence, the Trial Court found that the convicted accused being an intemperate person could not control his passion and killed his wife Smt. Manjamma in a most cruel manner without any justification and that the accused is dangerous to the society and he does not deserve any sympathy from the Court. In this view of the matter, the Trial Court felt that the death sentence has to be awarded to the convicted accused in order to deter and dampen the spirit of the criminals like the accused in the present case. Accordingly, the Trial Court has imposed the sentence of death upon the convicted accused and made reference to this Court for confirmation under Section 366 of Cr.P.C,
4. Besides the reference made by the Trial Court under Section 366 of Cr.P.C. for confirmation of the death sentence of the accused who has been convicted of the offence under Section 302 IPC, the appellant has also filed an appeal challenging his conviction and sentence imposed by the Trial Court.
5. Since these two matters namely the reference made by the Trial Court Section 366 of Cr.P.C. and the appeal filed by the convicted accused against his conviction and sentence, arise out of the same Judgment and order of the Trial Court, they are conveniently dealt with together and are finally disposed of by his common Judgment.
The case of the prosecution in brief is.
6. The appellant is the husband of the deceased Manjamma. At the time of her death, the deceased was hardly aged about 20 years and she was pregnant by 6 months. She was married to the appellant about 11/2 years prior to her death. After the marriage, the appellant took his wife deceased Smt. Manjamma to his house at Loleshwar and stayed together for few days leading a happy marital life. Subsequently, the appellant started assaulting the deceased. After about two months of their stay at Loleshwar since the appellant could not pull on well with the other members of his family, he came along with his wife and sheep to a place called Kyarakatte village to live there. Even after coming over there, the appellant had been assaulting his wife and ill-treating her. That is to say, he did not stop ill-treating and harassing the deceased even after coming over to Kyarakatte village. PW-1/Smt. Devakka, who is an elder sister of the deceased, has been residing at Kyarakatte village itself. PW.-1/Smt.Devakka, PW-8 Kenchappa and PW-12 Shambulingappa and few other elders of the village advised the accused not ill treat and harass the deceased and to lead a happy married life with her. But the said advice has no effect on the appellant and he continued to be so. Thereafter the appellant went along with his wife to a place called Channapura and stayed there for about 3 months and later he went along with the deceased to Mathihalli and left his wife in the house of his maternal aunt. In the course of time, the deceased Manjamma became pregnant through the appellant and during the relevant time of this incident, She was pregnant by six months. When the deceased Manjamma was pregnant by 5 months and a few days prior to her death, she was brought to the house of her elder sister PW-1 in Kyarakatte village by PW-1, her younger sister Kamalamma and Parassappa, the husband of her younger sister and accordingly the deceased was staying in the house of PW-1 at Kyarakatte village expecting a child. It appears that the deceased Smt. Manjamma had become pregnant for the first time and accordingly she was brought to the house of PW-1 for her delivery. While the deceased Manjamma was so staying in the house of PW-1 at Kyarakatte village, the appellant came to the house of PW-1 and demanded PW-1 to send his wife along with him. PW-1 replied to the accused that the deceased would be sent after her delivery. Even the deceased refused or declined to go along with the accused when asked by the accused to accompany him to his house. Thereafter on that relevant day in the morning, the appellant had a quarrel with the deceased on her refusal to accompany him. PW-1/Smt. Devakka advised the accused not a quarrel with the deceased. Thereafter the complainant/ PW-1 left the house to go for coolie work in the field. So also the husband and the son of PW-1 left the house in order to go for coolie work. When the complainant/PW-1 left the house, the appellant and the deceased were only present in the house. On the same day at about 3 p.m. the complalnant/PW-1 returned to her house and having found the door of her house closed, she gave a call to the deceased to open the door. But she did not receive any response from inside the house. While the complainant/ PW-1 was still standing outside their house, the appellant suddenly opened the door and ran outside the house by pushing aside the complainant/PW-1. When the appellant emerged out of the house, his clothes were found to be blood stained. Soon thereafter the complainant/PW-1 went inside the house and found the deceased Manjamma lying death in the house. The wooden implement called 'thattu mani' was also found lying nearby. On seeing such ghastly incident, the complaint/PW-1 ran out of the house screaming. On hearing her cries, one Obalappa/PW-7 came there and PW-1 informed him of what she had actually witnessed or seen.
Thereafter, both PWs.1 and 7 chased the accused, but he could not be caught as he ran towards Bylenahalli village. Kariyappa PW-10 had also chased the accused, but the accused pushed him and ran away by giving a threat. Thereafter the complainant/PW-1 went to the Police Station at about 5.30 p.m. on 04.12.1993 and gave her statement which was recorded to writing as per Ex.P.1. On the basis of which and treating the same as FIR, the PSI/PW-11 registered the case and took up investigation. During the course of his investigation, the accused was apprehended by the PSI/PW-11 on 19.2.1994 and was produced before the CPI/ PW-13. He caused the arrest of the accused and got him remanded to judicial custody. After completion of the investigation, a charge sheet was laid against the accused under Section 302 IPC. In the normal course, the case of the accused stood committed to the Sessions Court for Trial. The appellant having pleaded not guilty and claim to be tried, the prosecution had examined at the Trial as many as 13 witnesses and also placed on record certain documentary evidence and material objects including the weapon of offence MO.1. When the accused was examined under Section 313 Cr.P.C, he denied all the incriminating circumstances appearing against him in the prosecution evidence. The defence of the accused was one of a total denial. He did not however examine any witness on his behalf.
7. The Trial Court, on consideration of the entire evidence on record and after hearing the submissions on both sides, has found that the prosecution has been able to establish or prove the following circumstances against the accused and they are:
1. The death of the deceased Smt. Manjamma was homicidal;
2. The accused has motive to kill his wife as she refused to accompany him;
3. The accused and the deceased were alone present in the house till PW-1 came and called out Manjamma and thereafter the accused ran away from the house which rules out the possibility of the deceased Smt. Manjamma being killed by none else than the accused and the accused alone;
4. The accused ran away from the house after pushing PW-1 and he was chased by Obalappa/PW-7, but could not be caught;
5. The accused was seen by PW-10 at about 3 p.m, who came running towards his land from the village side and PW-7 chasing him and that he was caught by PW-10, but the accused somehow escaped and ran away; and
6. The conduct of the accused in becoming scarce after the incident.
8. On the basis of the above circumstances and the conclusion drawn therefrom, the learned trial Judge found that the prosecution has been able to establish its case against the accused for the offence under Section 302 IPC. Then after hearing the accused on the question of sentence, the trial Court felt that the murder of the deceased lady has been committed in a most cruel manner without any justification and that the accused is dangerous to the society and does not deserve any sympathy of Court in the matter of awarding sentence and accordingly, the learned trial Judge convicted the accused under Section 302 IPC and sentenced him to death and made a reference to this Court under Section 366 of Cr.P.C. The convicted accused has also preferred an appeal challenging his conviction and sentence. Hence the Criminal Reference made by the Trial Court under Section 366 of Cr.P.C. as well as the Criminal Appeal filed by the convicted accused are conveniently taken up together for consideration.
9. Learned Counsel for the Appellant in Criminal Appeal No. 1419/2002 after taking us through the entire evidence, has contended before us that the conviction of the accused in this case is based only on the circumstantial evidence, but the circumstances/ sought to be proved against the accused are not at all sufficient to hold him guilty under Section 302 IPC. He contended that even the evidence of PW-1 suffers from several contradictions and omissions. While elaborating this submission, he contended that the complainant/PW-1 has stated in her chief examination that the accused opened the door from inside and ran out of the house, whereas in the cross-examination she has stated that she herself opened the door which was locked from inside and not the accused and after the door was so opened by her, the accused ran out of the house. Besides this contradiction, he contended that the evidence of PW-1 suffers from several infirmities. While referring to the evidence of PW.2, he contended that he has suffered an omission with regard to the motive attributed to the accused namely the quarrel of the accused with the deceased. He contended that the circumstances sought to be proved against the accused are not at all sufficient to convict the accused under Section 302 IPC. He also contended that certain material witnesses who were supposed to have been present nearby the house of the complainant/PW-1 have not been examined in the case which is fatal to the prosecution case. He also contended that even the husband and son of PW-1 who were admittedly residing in the house along with PW-1 have not been examined and their non-examination without any explanation is fatal to the prosecution. He further contended that even the other sister of PW-1 and her husband who alleged to have brought the deceased and made her to say in the house of PW-1 ought to have examined by the Prosecution, but they have not been examined. He therefore contended that the non-examination of any of these witnesses by the prosecution is clearly fatal to the prosecution, He contended that in so far as the complainant/PW-1 is concerned, she is a tutored witness and introduced for the purpose of this case and hence she could not be relied upon. He contended that the presence of PW-1 at that hour of the day appears to be unnatural in the circumstances of the case. While elaborating this submission, he contended that even as admitted by PW-1 herself, normally when they go for coolie work, they would return only in the evening and that being so, the presence of PW-1 at about 3. p.m., in the afternoon near her house is highly unnatural. He also contended that the conduct of the accused in staying in the house till the arrival of PW-1 as spoken to by her would only speak of the innocence of the accused and not his guilty mind. He contended that, that could not have been the conduct of the person if he has committed the murder of his wife in the house. Learned Counsel for the appellant also commented on the conduct of PW-1 in consulting the villagers and thereafter going to the Police Station to lodge a complaint. Under the circumstances, he contended that in all probability, the complaint must have been given after due deliberation. While adverting to the evidence of PWs-2, 7 and 10, he contended that their evidence also suffers from serious infirmities and does not in any way corroborate with the evidence of PW-1. He also contended that the complainant PW-1 has not stated as to whose land she had gone for coolie work that day and hence it is doubtful whether she had gone for a coolie work at all on that day. He also contended that when the accused and the deceased were found quarreling in the house, the complainant/PW-1 could not have left them alone in the house and gone out. He contended that PW-2 has stated that PW-10/Kariyappa was there near the house of PW-1 when he had gone there after hearing the cries of PW-1, whereas PW-10/Kariyappa has stated that he was in a field and at that time, he saw the accused being chased by PW-7. Further according to PW-7, the two roads namely Bylenahalli road and Bendigere road are different and distinct and there is clear discrepancy as to which road the accused took while running away from the house. Under the circumstances, he contended that PW-10/Kariappa seeing the accused running and being chased by PW-7 is highly doubtful in view of he evidence of PW-2 who has stated that he had seen PW-10 at the house of PW-1. He therefore contended that all these discrepancies in the evidence of PWs-1, 2, 7 and 10 could not have been there, if the events had occurred in the manner as deposed to by them. He also contended that even the circumstances spoken to by these witness taken on their face value will not point out definitely to the guilt of the accused. He contended that the one and the only circumstances if at all established from their evidence is the presence of the accused and that by itself is not sufficient to connect the accused with the crime especially when the deceased and the accused are husband and wife and at the relevant time of this incident, they were both staying in the house of PW-1. He contended that the theory of last seen together besides being not proved by the prosecution, is not sufficient to fasten the guilt upon the accused. He further contended that while PW-2 has stated that PW-10 was present at the house of PW-1 and also stated that when he saw the accused, the hands of the accused were blood stained, whereas PW-10, who states to be in the field, claims to have seen the accused with blood stained clothes and so also PW-1. He also contended that there is also some variation with regard to the time of the incident. According to him, some of the prosecution witnesses says 1.00 or 2.00 p.m. and some say 3.00 p.m. He contended that there is also some discrepancy with regard to the road that was taken by the accused while running away from the house of PW-1. Further he contended that according to PW-1, nobody was seen nearby her house. But whereas the others say that on hearing the cries of PW-1, they had come to the spot. Coming to the motive part of the case put forth by the prosecution, he contended that the motive attributed to the accused is too feeble for committing such ghastly crime. He also contended in the alternative that the incident in question might have happened under a grave and sudden provocation when the deceased declined to accompany the accused to his house and hence the act committed by the accused does not attract Section 302 IPC. He also referred to certain investigation lapses in the case. He contended that the Investigating Officer did not seize the blood stained clothes of the accused though they were stated to be blood stained. He contended that the non-seizure of the clothes of the accused is fatal to the prosecution case. He therefore contended that the prosecution is not at all successful in establishing its case. In support of his submissions, the learned Counsel for the Appellant has relied upon the decisions reported in:
NARAIN AND ORS. v. STATE OF PUNJAB, : 1959CriLJ537 (C)
KAMESH KUMAR SINGH AND ORS. v. STATE OF UTTAR PRADESH, : 1968CriLJ1655 (B)
RAVINDER PARKASH AND ANR. v. STATE OF HARYANA (Page 616) and BALD SONBA SHINDE v. STATE OF MAHARASHTRA, 2002(4) All India Criminal Law Reporter P. 757
PAWAN KUMAR v. STATE OF HARYANA, : 2001CriLJ1679 (A) and STATE OF KARNATAKA v. HANUMANTHA, 2002 (4) A.I.C.L. Reporter P-632
10. As against this, the learned SPP for the Respondent/State has contended that it is always quality and not quantity of evidence that counts in a criminal case. He contended that in the instant case, all the relevant material witnesses who are supposed to have been acquainted with the case have been examined in the Court and they have given their evidence in Court in the most natural way. He contended that there is a prompt lodging of the FIR to the Police without undue delay which lends assurance to the prosecution version put forth at the trial. While adverting to the evidence of the witnesses examined in Court, he contended that except the complainant/PW-1, all other witnesses are independent witnesses. Their evidence according to the learned SPP clearly establishes the circumstances which inescapably points out to the guilt of the accused. He contended that even the motive attributed to the accused has also been clearly established not only by the prosecution witnesses but also by the suggestion made by the defence. He contended that the accused and the deceased were always quarrelling and they were not pulling on well with each other. With regard to the presence of the deceased at the house of PW-1, he contended that it was the first pregnancy of the deceased and hence it is quite natural to have the deceased in the house of PW-1 as per their tradition. He contended that the material evidence placed on record clearly reveals that on that fateful day only the accused and the deceased were present in the house and none else. He contended that when the death of the deceased had occurred in a suspicious circumstances, it is the accused alone who could explain the same as to the circumstances under which the death of the deceased had occurred and the non-explanation on the part of the accused coupled with the proved circumstances, will clearly establish that it is the accused and accused alone has committed the murder. He contended that the circumstances spoken to by the prosecution witnesses namely PWs-1, 2, 4, 7 and 10 would clearly establish the guilt against the accused and the non-explanation of the accused with regard to the incriminating circumstances appearing against him in the prosecution evidence is an additional link to complete the chain of circumstances. He also contended that there was absolutely no reason for the witnesses to falsely implicate the accused. All the prosecution witnesses have withstood the cross-examination effectively and they have consistently spoken to about the incident in question. He therefore contended that the prosecution has proved its case beyond all reasonable doubts. He also referred to the abscondence of the accused as a circumstances to complete the link,
11. On the question of death sentence imposed by the Trial Court, the learned SPP has contended that the Trial Court was fully justified in imposing the death sentence against the accused who has committed the murder of the deceased while she was carrying a child in the womb. He contended that the appellant had escaped conviction in the previous case as the witnesses has turned hostile. But the said circumstances of the accused facing a trial for murder previously would show that the Appellant had bad antecedents and rightly the same has been taken special note of by the Trial Court while awarding the death sentence. He contended that in the instant case, the accused, who is the husband of the deceased, has most inhumanly committed the murder of his own wife who at that time was pregnant by six months and thereby he not only killed the lady but also the child in the womb which was yet to see the world. He therefore contended that this is a fit case where this Court should confirm the death sentence imposed by the Trial Court. In support of his submissions, the learned SPP has placed reliance upon the several decisions reported in:
APREN JOSEPH ALIAS CURRENT KUKUNJU AND ORS. v. THE STATE OF KERALA P. 947 (C,D,E), : 1973CriLJ185 (C) and JAGMOHAN SINGH v. STATE OF UP., : 1973CriLJ370 , SHIV MOHAN SINGH v. THE STATE (Delhi Administration), : 1977CriLJ767 (B)
SHANKARlA v. STATE OF RAJASTHAN, AIR 1978 SC Page 1248(F)
LEHNA v. STATE OF HARYANA, : [2002]1SCR377
STATE OF PUNJAB v. GURMEJ SINGH, : 2002CriLJ3741
SHRI BHAGWAN v. STATE OF RAJASTHAN, : 2001CriLJ2925
STATE OF U.P. v. DHARMENDRA SINGH AND ANR. 2000 CR1. LJ. Page 5(B)
JAI KUMAR v. STATE OF M.P., : 1999CriLJ2569
He also drew our attention to certain passages in the book titled '