Mallesh vs The State of Karnataka

Mohan M. Shantana Goudar, J.—1. The judgment and order of conviction dated 28.02.2006 passed by the III Fast Track Court, Hassan, in Sessions Case No. 76/2005 is called in question in this appeal by the convicted accused.

Accused was charged for the offences punishable under Sections 376, 302 of IPC r/w. Section 201 of IPC. The trial Court acquitted the accused of the offences punishable under Sections 376 and 201 of IPC and convicted the accused for the offence punishable under Section 302 of IPC and sentenced him accordingly.

The case of the prosecution in brief is that:

"The accused was a womanizer; there was an ill-will between the accused and the complainant with regard to sharing of water; there used to be frequent quarrels on small issues between the families of the accused and the complainant; About 7 to 8 years ago, the accused had tried to outrage the modesty of mother of the complainant; The accused used to tease and invite the deceased victim for sexual pleasure; In that regard also, accused was admonished by the complainant; The complainant is none other than husband of the deceased; On the date of the incident, i.e., on 11.11.2004, at about 4.00 p.m. the deceased Radhamani went to a stream by name Vatehole Halla, flowing near the village but she did not return home even till 7.00 p.m; at about 7.00 p.m., the family members of the deceased including PW.1 went in search of the deceased and ultimately they found the dead body of Radhamani in the stream with bleeding injuries on the head; Since there was no bus facility to go to the police station in the evening of 11.11.2004, PW.1 went to the police station in the morning of the next day of the incident i.e., on 12.11.2004, at about 8.00 a.m. and lodged the complaint, which came to be registered in crime No. 82/2004 of Arehalli Police Station, Hassan District for the offences punishable under Sections 376, 302 and 201 of IPC. In the complaint itself, the complainant has mentioned about the motive for the commission of the offences, the previous ill-will between the family members of the accused and the deceased, earlier conduct of the accused and about the incident in question.

It is the case of the complainant that on the previous evening of the incident also, the accused followed the deceased and teased her; while the deceased was washing clothes in the Vatehole Halla (stream), the accused assaulted on the head of the deceased with Spade (M.O. No. 17); consequently, the deceased fell down unconscious and thereafter the accused tried to commit rape on the victim; thereafter, the accused lifted the dead body of the deceased and threw in water stream. PW.19/Inspector of Police completed the investigation and laid the charge sheet."

In order to prove its case, the prosecution examined 19 witnesses and got marked 21 Exhibits and 18 Material Objects. On behalf of the defence, neither any witness was examined nor any document was marked. As mentioned supra, the trial Court on appreciation of the material on record convicted the accused for the offence punishable under Section 302 of IPC and acquitted of the offences punishable under Section 376 and 201 of IPC.

Sri K. Nagaraju, learned advocate appearing on behalf of the appellant taking us through the material on record submits that versions of both the eye-witnesses are unbelievable; material variations are found in the versions of PWs. 14 and 15; the versions of the eye witnesses are highly exaggerated; the prosecution has assumed the motive against the accused; the trial Court without assigning the valid reasons has come to the conclusion that the accused has committed the murder.

Per contra, Sri Keshavamurthy, learned SPP-II argued in support of the Judgment of the Court below.

Before proceeding further, it would be relevant to note the versions in brief of the witnesses examined on behalf of the prosecution.

PW. 1 is the husband of the deceased. He has lodged the complaint as per Ex. P1. He is also the witness for scene of offence mahazar - Ex. P2. From the spot, ear rings, karimani sara and bangles of the deceased were seized and they were identified by PW.1. He has deposed about the animosity of the accused with the family of the complainant. He has also deposed about the earlier act of the accused trying to outrage the modesty of mother the complainant as well as about accused teasing the deceased at an earlier point of time.

PW.2 is the witness for inquest mahazar - Ex. P4.

PW.3 is another witness for scene of offence mahazar - Ex. P2. He is also a witness for mahazar - Ex. P3 pertaining to finding of the dead body.

PW.4 is the Assistant Engineer of PWD, Belur. He has drawn the sketch of scene of offence as per Ex. P5.

PWs. 5, 6 and 8 are the Police Constables who participated during the course of investigation at different stages.

PW.7 is the Sub-Inspector of Police. He received the complaint filed by PW.1 as per Ex. P1. He registered the crime and sent the first information to the jurisdictional Magistrate. He conducted part of the investigation.

PW.9 is mother of the deceased. She has deposed about the motive for commission of the offence.

PWs. 10 and 11 have also deposed about the motive for commission of the offence.

PW.12 is the witness for recovery mahazar Ex. P10 under which Spade - MO. 17 is recovered at the instance of the accused. He is also a witness for panchanama -Ex. P1 1 under which MO. 18 - T. shirt of the accused was recovered at the instance of the accused.

PW.13 is the neighbour of the complainant. He accompanied the complainant in search of the deceased.

PWs. 14 and 15 are the eye witnesses to the incident.

PW.16 is the doctor. He conducted autopsy over the dead body. Post-mortem report is at Ex. P13.

PW.17 is the witness who has deposed about the accused fleeing away from the scene of offence at about 6.30 p.m. on the date of the incident. According to PW.17, the clothes of the accused were wet at that time.

PWs. 18 and 19 are the Investigating Officers. Among them, PW.19 laid the charge sheet.

The aspect of motive is spoken to by PWs. 1,9, 10 and 11. All these witnesses have deposed about the earlier incident of the accused in trying to outrage the modesty of mother of the complainant. Such incident of outraging the modesty had occurred about 6 to 7 years prior to the incident in question. In that regard, panchayat was held and the accused was admonished. They have also deposed about the accused frequently teasing the deceased and about quarrelling with the family of the complainant. We find that the evidence of these witnesses relating to the motive is consistent, cogent and reliable. The defence has only made suggestions to these witnesses which are denied by the prosecution witnesses. In other words, the evidence of the witnesses who have deposed about the motive has remained unimpeached. In the light of such evidence on record, the trial Court is justified in concluding that the motive suggested by the prosecution is proved by it beyond reasonable doubt.

The most important evidence in this matter is the evidence of PWs. 14 and 15 who are the eye witnesses to the incident in question.

PW.14 has deposed that at about 4 p.m. on 11.11.2004 when he was working in his paddy field, the accused came with the spade near stream; According to PW.14, the accused might have come to the stream for catching the fishes; At that point of time, the deceased was washing the clothes on the bank of the stream; The accused went near the deceased and assaulted on the head of the deceased with spade; the accused took the deceased on his shoulder for a short distance and thereafter he made the victim to lie on the ground and tried to outrage her modesty; At that point of time, PW. 15 - Rajegowda was also present in his land; thereafter the accused threw the dead body in the stream; he (PW.14) came to the village immediately thereafter and informed about the said incident to PW. 1 and the villagers at about 8 p.m. In the cross-examination also, PW.14 has reiterated the aforementioned factors. The suggestions putforth by the defence are effectively denied by him. Nothing worth is elicited by the defence to discard the evidence of PW. 14.

The evidence of PW.14 is supported by the evidence of PW.15, another eye witness. PW.15 has also deposed that when he was cutting the grass in his agricultural land, he saw the accused coming near the stream with the spade and assaulting on the head of the deceased. He has also deposed about the accused carrying the body of the deceased on his shoulder. In the examination-in-chief, PW.15 has clarified that since the accused had indulged in similar activities 2-3 times earlier to the incident in question, he had feared and therefore he did not tell about the incident to the villagers or the complainant immediately on the very date. However on the next day, it seems he has told to PW. 1 and the villagers. PW. 15 has not deposed about the act of the accused trying to rape or trying to outrage the modesty of the deceased. The evidence of PW.15 is also not impeached by the defence during his cross-examination. Except making few suggestions, the defence has not tried seriously to show that the version of PW. 15 is not believable.

On going through the evidence of PWs. 14 and 15 meticulously, we are of the clear opinion that both these witnesses have consistently and cogently deposed about the incident of the accused assaulting the deceased with spade on his head. Both of them have also deposed that the deceased after assaulting on the head of the deceased, carried the deceased on his shoulder towards the stream. However the versions of these two witnesses differ with regard to the alleged act of the accused trying to commit rape on the victim after assaulting her. As mentioned supra, PW.14 has deposed that the accused tried to commit rape on her, whereas PW.15 has not deposed so. The version of PW.14 insofar as it relates to the alleged act of the accused trying to commit rape on the deceased is really an exaggerated version. The principle, falsus in uno falsus in omnibus will not apply to Indian situation. In our country, the witnesses are in the habit of exaggerating certain facts. Under such circumstances, the Courts in India would not disbelieve the versions of such witnesses who exaggerate, fully. The Courts will try to separate the grain from the chaff to find out the truth.

The evidence of the eye witnesses with regard to the actual assault by the accused on the deceased with the spade on her head is fully supported by the evidence of the doctor - PW.16 who conducted post-mortem examination. The post-mortem examination report is at Ex. P13. The same reveals that the death is due to shock and haemorrhage secondary to depressed fracture of centre of the skull bone. The doctor PW.16 has also deposed that the cause of death is due to shock and haemorrhage secondary to depressed fracture of centre of the skull bone. Doctor has also further admitted that the fracture of the skull bone can happen if a person is assaulted with the spade forcibly on the head. The medical version also reveals that the deceased was not raped.

Thus considering the evidence of PWs. 14, 15 and 16 homogeneously and jointly, one can safely come to the conclusion that the deceased was done to death by assaulting her on the head with a weapon and that she was not raped. Therefore the version of PW.14 that the accused tried to rape the deceased appears to be an exaggerated version. Be that as it may, that does not take away the other portion of the evidence of PW.14 which is fully supported by the version of PW-15 as well as the evidence of the doctor.

The ocular testimony of PWs. 14 and 15 is further supported by the evidence of PW.17 who has deposed that he saw the accused going away from the scene of offence at about 6.30 p.m. on the date of the incident. According to PW.17, he saw the accused hurriedly passing through the place which is about 200 feet away from the place of incident.

Added to it, the prosecution has relied upon the evidence of PW.12 who has deposed about the recovery of MO. 18 (T.shirt of the accused) at the instance of the accused under panchanama Ex. P11. PW.12 has also deposed that the accused took the panchas and the Police to the place wherein he had hidden the spade after the incident; the accused took out the spade after reaching the said place which was seized under panchanama - Ex. P10. It is elicited in the cross-examination by the defence that the place wherein the deceased had hidden the spade was just about 10 meters from the place wherein the deceased was said to be washing the clothes. In the cross-examination, PW.12 has reiterated that the accused led the Police and the panchas to the place and voluntarily took out the spade from a bush where it was hidden.

From the aforementioned discussion, it is clear that the trial Court is justified in concluding that the accused committed the murder of the deceased. We do not find any ground to suspect or discard the evidence of the eye witnesses PWs. 14 and 15 as well as supporting evidence discussed supra. On reevaluation of the entire material on record, we find that the trial Court is justified in convicting the accused for the offence under Section 302 of IPC. Hence no interference is called for.

Appeal fails and the same stands dismissed.