Sabanna vs The State

K.N. Phaneendra, J.

The appellant, who arraigned as Accused No. 1 in S.C. No. 224/2010 on the file of the IV Additional Sessions Judge at Gulbarga, has called in question the judgment of conviction and sentence passed against him by the learned Sessions Judge for the offence punishable under Section 304 Part-II of IPC, wherein the learned Sessions Judge has sentenced the appellant to undergo Rigorous imprisonment for a period of seven years for the aforesaid offence.

The brief factual matrix of the case that emanate from the records are that, the Wadi Police after thorough investigation of the case in connection with Crime No. 7/2010 which was registered for the offences punishable under Sections 147, 148, 302, 201, 452, 506 r/w. Section 149 of IPC and also under Section 3(1)(x), 3(2)(v) and (vi) of SC and ST (PA) Act, 1989 and submitted the charge sheet against the present accused/appellant and also against two accused by name Mallappa and Basavaraj, who were acquitted by the trial Court.

It is the case of the prosecution as per the charge sheet that Accused No. 1 himself was the complainant earlier, who implicated the persons, who later arraigned as prosecution witnesses and who were also examined as PWs. 9 to 11, stating that on 3.1.2010 at about 8.00 am, Accused No. 1 had been to Bachawar village with is senior uncle and thereafter he came to his village and he saw one Sharanappa, s/o. Ramanna Mukadi, Ramu, S/o. Ningappa Giribannur, Hanama Naik and Harischandra Moti Rathod were sitting near his house in drunken state. At that time his mother Padmavathi was in his house. At about 12.30 p.m., when the complainant came from Bachawar Village he heard hues and cries of his mother in the house and it is alleged that, Ramu Giribennur was standing near his house and on seeing the complainant he threatened to kill complainant (A1) and that he went back side of the house and saw through the window that Harishchandra caught hold both legs of his mother and Sharanappa Mukadi assaulted with axe on the forehead of his mother. In fact, on hearing the hues and cries of Accused No. 1, the villagers came and thereafter, the said persons escaped from the hands of Accused No. 1; After going inside the house, he found his mother dead and also found injuries on his mother''s forehead, neck, etc. On the basis of the said complaint, the police have investigated the matter. But, during the course of investigation, it appears to the police that Accused No. 1 has entered into compromise with PWs. 9 to 11, on receiving an amount of Rs. 55,000/-and the police found that Accused No. 1 has misdirected the police and tried to exculpate himself from the crime. However, during the course of investigation, on recording the statement of the eyewitnesses and visualizing the other circumstances, the police found that the complainant (Accused No. 1) and Accused Nos. 2 and 3 are the culprits who have indulged in committing murder of the deceased Padmavathi and also committing offence under Sections 201 of IPC.

According to the charge sheet averments, it is the case of the prosecution that on 03.01.2010 at about 12.30 in the afternoon at Bachawar Tanda, the appellant has committed murder of his mother Padmavathi when she refused to give Rs. 10/- for his wise habits, by assaulting her with an axe on her neck and caused severe injury, which is sufficient to cause her death and she succumbed to that injury later. Further prosecution case is that, at the same time, when the Accused No. 1 has committed murder of his mother Padmavathi, Accused Nos. 2 and 3 in order to cause disappearance of the evidence, with an intention to screen this appellant from legal punishment, they have supported Accused No. 1 and thereby they have committed the offence under Section 201 of IPC. It is also the further case of the prosecution that Accused Nos. 2 and 3 have also made attempts along with Accused No. 1 to fabricate the evidence and to create evidence against the prosecution witnesses-CWs. 18 to 20 (PWs. 9 to 11) implicating them in to the crime of murder, knowing well that they are likely to be convicted for the offence of murder of Padmavathi and thereby Accused Nos. 2 and 3 have committed the offence under Section 194 of IPC.

During the course of investigation the appellant/accused was arrested on 17.04.2010 and Accused No. 2 was arrested on 13.07.2010 and Accused No. 3 was enlarged on anticipatory bail. It appears Accused No. 1 has been in judicial custody since 17.04.2010. The trial Court after securing the presence of the accused persons, framed charges against Accused Nos. 1 to 3 for the offence punishable under Section 302 of IPC so far as Accused No. 1 is concerned and charged Accused Nos. 2 and 3 for the offences punishable under Sections 201 and 194 of IPC.

The prosecution in order to bring home the guilt of the accused, examined as many as 28 witnesses as PW.1 to 28 and got marked Exs. P1 to P26 and MOs. 1 to 9. The accused persons were also examined under Section 313 of Cr.P.C. As the accused did not choose to lead any defence evidence, after giving its anxious deliberations to the evidence on record and also after hearing the counsel for the defence, Accused No. 1 was convicted for the offences as noted above and as the learned Sessions Judge found insufficient evidence so far as Accused Nos. 2 and 3 are concerned, acquitted them of the said offences.

Learned counsel for the appellant has submitted his arguments in support of the grounds urged in the memorandum of appeal. It is submitted that though the accused/appellant has challenged the judgment of conviction and sentence on several grounds even challenging the evidence of the so-called eyewitnesses and other circumstances, but, while submitting the arguments, the learned counsel has submitted that he is not serious so far as the judgment of conviction recorded by the trial Court. However, he mainly concentrated with regard to the sentence passed by the trial Court and he submitted that the trial Court has not properly appreciated the mitigating circumstances which are available in this particular case, particularly age of the accused, his previous conduct and also submitted the accused being not married no body is there to take care of him and also about his future prospects. In spite of existence of such mitigating circumstances, the trial Court has imposed sentence of seven years imprisonment and that is too harsh and that is required to be reduced to the period of imprisonment already undergone by the accused. He further submitted before the Court that the appellant/accused has already undergone five years five months of imprisonment; substantial sentence has already been served by him, therefore, lenient view may be taken and he may be given set-off of the period of imprisonment undergone by the accused to the said period and consequently release the accused person.

Learned HCGP appearing for the Respondent-State has seriously countered the arguments of the learned counsel for the appellant. He contended that though the accused person was aged 19 years and he is young and energetic, but the conduct of the accused has to be visualized by the Court as to whether he is an ordinary innocent person and who was provocated by any of the circumstances to commit such an offence. On the other hand, he submitted that in this particular case, though the circumstances show that the act of the accused was pre-planned and he wanted to exculpate himself not only by means of implicating some innocent persons into the crime, but he wanted to exculpate himself. The conduct of the accused itself shows that he has got sufficient maturity of mind, thinking capacity and he knew about pros and cons of his act, and in spite of that he has done such an act by committing murder of his own mother for a flimsy reason. Thereafter, he wanted to implicate some other innocent persons into the crime. Therefore, that itself is sufficient to treat the accused with an iron-hand. Further added to that, the offence under Section 304 Part-II of IPC is punishable upto 10 years or with fine or with both. If the said act is done by the accused with the knowledge that it is likely to cause death of the deceased, he intentionally caused such grievous bodily injury to the deceased. Therefore, he submitted that the trial Court has already exercised its discretion and sentenced him for seven years of imprisonment though the provision empowers the trial Court to impose punishment upto 10 years. Therefore, no leniency could be shown to the accused and accordingly, he pleaded for out-right dismissal of the appeal.

In the above said background, though the learned counsel has not seriously argued the matter on merits of the case, being the First Appellate Court, it becomes the responsibility of this Court to look into the records to ascertain as to whether the trial Court is right in convicting the accused for the offence 304 Part-II and whether the sentence passed by the trial Court suffers from any illegality or whether it requires reduction.

The prosecution in order to bring home the guilt of the accused, as I have already stated, examined as many as 28 witnesses. But out of those witnesses, the relevant witnesses are the eyewitnesses to the incident and other circumstantial witnesses. In this background, now let me look into the evidence of the prosecution witnesses and how they have implicated the appellant into the crime. As I have narrated, the complaint was being filed by the appellant himself, wherein, he has categorically implicated PWs. 9 to 11 into the crime. What could be seen from the first information report (Ex. P23) is that, he never disputed the death of his mother. Even PW.26-PSI has deposed before the Court that on 06.12.2010 at about 12.30 p.m., he was in the police station and the appellant himself has lodged the oral complaint, his statement was reduced into the writing and he obtained left thumb impression of the complainant (A1). On the basis of the said complaint, he registered the case in Crime No. 7/2010 and sent the FIR to the Court. He identified the signature of the complainant in the said document as Ex. P23(a). Very peculiarly this document has not been denied by the accused; In the course of cross-examination, it is suggested that Accused No. 1 has only stated that murder of his mother took place, but all other things narrated in Ex. P23 was not stated by Accused No. 1. It is also suggested that originally the case was registered against eight persons on the oral complaint of Accused No. 1. Except this there is absolutely no suggestion was put to this witness that Accused No. 1 did not lodge any complaint as per Ex. P23. There are no materials which are inculpatory in nature. Ex. P23 can be relied upon to ascertain the facts if it is not inculpatory in nature. Therefore, the death of the mother of the appellant/accused by means of sustaining severe injury on her neck is not in dispute and it is also not in dispute that her death was homicidal one. It is also not in dispute that the dead body was buried on that particular day. These factual aspects which are available in Ex. P23 which is the earlier complaint lodged by the appellant is also supported by further investigation by the police and also the evidence of the doctor. PW.19-Dr. Amruth has categorically stated in his evidence about the injuries sustained by the deceased Padmavathi, the mother of the appellant and who has categorically stated that he issued the post-mortem examination report as per Ex. P14. If Ex. P14 is seen along with the evidence of the doctor, it clearly discloses that the death of the deceased Padmavathi was due to Hypovoluminic shock as a result of lacerated wound over neck. Therefore, it is clear from the evidence of the Doctor, Investigating Officer and also the Tahsildar, who conducted inquest mahazar that the death is homicidal. Even after exhumation of the dead body, the prosecution has proved the homicidal death of the deceased.

Now, the question arises that who is responsible for the death of the deceased Padmavathi. For this, the prosecution has relied upon the evidence of PWs. 1 to 3 who are the eyewitnesses to the incident. Though the statement of these witnesses are recorded little later by the prosecuting agency, but the explanation has been offered by these witnesses. Further added to that as I have noted, the appellant himself has tried to misdirect the police by filing a complaint against some other innocent persons. Perhaps that may be the reason the police at the initial stages were not in a position to ascertain as to what should be the future course of investigation and how they have to proceed with the investigation. Therefore, recording of the statement of the eyewitnesses little later is of no significance so far as this case is concerned. In this background, the evidence of PWs. 1 to 3 is to be understood.

PW.1-Goribai, is the neighbour of the deceased Padmavathi. She categorically deposed that she has seen Accused No. 1 and she does not know anything about Accused Nos. 2 and 3; The deceased Padmavathi was residing along with Accused No. 1 (Appellant-Saibanna); The house of this witness is situated about 100 ft. away from the house of Padmavathi; On the date of incident, this witness (PW.1) and another witnesses by name Danubai (PW.2) and Ramanibai (PW.3) were sitting in front of the house of the deceased Padmavathi as usually they used to sit in that place. At about 7.00 a.m., they observed that two persons came and went back and at about 8.00 a.m. Accused No. 1 came to deceased Padmavathi and picked-up quarrel with her and demanded Rs. 10/- from her and the deceased Padmavathi refused to pay the same, Accused No. 1 and PW.1 consoled both Accused No. 1 and the deceased and asked them not to quarrel and she came back to her house. At about 8.30 a.m, she heard the weeping sound of the deceased Padmavathi and herself and her mother-in-law (PW.2) went to the house of the deceased Padmavathi and she saw the accused assaulting the deceased by an axe on the neck region of deceased Padmavathi and also she saw lot of blood on her body and she died there, and in fact she enquired Accused No. 1 for the cause of assault, then he told her that his mother did not give Rs. 10/-, therefore, he assaulted her; Thereafter she came back to her house. She also identified the axe (MO.1) used in the commission of the offence, which was produced before the Court and the clothes (MOs. 2 and 3) and broken bangle pieces (MO.5) of the deceased and clothes of Accused No1 (MOs. 8 and 9). The evidence of PW.1, in my opinion, is not at all disputed. So far as the core of the prosecution case is concerned, the defence has gone to the extent of suggesting to PW.1 that after the assault, Accused No. 1 was found at the same place. I do not know as to why this suggestion was made admitting the presence of Accused No. 1 at the spot at the time of incident. It is also suggested to PW.1 as to how Accused No. 1 assaulted the deceased and she also told that the dead body of the deceased was buried. Even in the course of cross-examination, she reiterated that she saw Accused No. 1 assaulting the deceased with an Axe (MO.1). There is no dispute regarding the presence of this witness at the time of incident. It is also suggested to her that the deceased Padmavathi had illicit relationship with others. It is also suggested that some other persons might have committed the murder of the deceased. Except taking-up this defence, the appellant has not placed any material to show as to why this witness is to be discarded and disbelieved. Therefore, as rightly contended by learned HCGP, nothing is elicited in the course of cross-examination of PW.1 to disbelieve her evidence and even the sole evidence of this eye witness is sufficient to hold that the accused has committed such a ghastly act.

PW.2-Dhanubai has also to some extent supported the case of the prosecution. She has stated that herself and PW.1 were sitting in front of the house of the deceased on the date of incident. Some three persons by name Sharanappa, Harishchandra and another came there to consume arrack to the house of the deceased and they came for drinking arrack and after taking drinks they went back to their houses. Thereafter Accused No. 1 came there and started quarrelling with his mother and he assaulted her and killed her. She has also stated that when she went to the spot Accused No. 1 was there at the spot and the Padmavathi was dead. She stated that she do not know the cause of death. Therefore, to that extent, she was treated as hostile. But in the course of cross-examination, she reiterated the presence of Accused No. 1 and also his clothes were stained with blood and the deceased was lying in the pool of blood. Again, in the course of cross-examination, similar suggestions were made as suggested to PW.1, but nothing more is elicited from the mouth of this witness to discard her evidence.

PW.3-Ramanibai has also deposed that on the date of incident, she saw Accused No. 1 in the house of the deceased Padmavathi and when the incident took place nobody was present in the house of the deceased except Accused No. 1 and the deceased. Though she has not fully supported the case of the prosecution, but she finally and categorically stated about the presence of the Accused No. 1 with the deceased at that particular time of incident. This circumstance fully corroborates the evidence of PWs. 1 and 2. PW.4 -Gangamma has also stated that on the date of incident, she went to the house of the deceased in order to receive Rs. 10/- as the deceased purchased vegetables from her and when she went there, Accused No. 1 was trying to close the door of his house and she saw Accused No. 1 in blood stained clothes and she became anxious to know about the blood stained clothes on the accused and at the same time, she saw the dead body of deceased Padmavathi and when she enquired about the death and the body in the pool of blood, Accused No1 did not speak to her. Thereafter, she went back to her house and after that the police have recorded her statement little later. It is suggested to PW.4 she is deposing falsehood against Accused No1 with regard to the murder of the deceased. Except that nothing has been suggested to her in order to eradicate her evidence. Though the prosecution has made attempts to establish the recovery of blood-stained clothes at the instance of the accused, but they did not send the bloodstained clothes to the FSL and secure a report. Therefore, though the clothes were recovered at the instance of Accused No. 1, that is of no use for the prosecution. Though PWs. 9, 10 and 11 were examined, they did not support the case of the prosecution. According to the prosecution, these three persons were earlier falsely implicated into the crime by Accused No. 1 and later there was a compromise between them for Rs. 55,000/-to exonerate them from the earlier allegations. But these three witnesses have not at all supported the case of the prosecution to any extent. The other witnesses so far as this incident is concerned are PW.12-Mallanagouda and PW.13-Appanagouda. They also turned hostile to the prosecution and they never admitted that they have convened any panchayath between Accused No. 1 and PWs. 9 to 11. The other witnesses are consequential witnesses as they are spot panch witnesses and the Tahsildar, who conducted the inquest by exhuming the dead body and conducted inquest, which are all not denied by the accused and there is no much cross-examination to them so far as the homicidal death of the deceased is concerned. Therefore, there is no need for this Court to deal with the evidence of those witnesses.

What ultimately emerges from the evidence of the prosecution is that the evidence of PWs. 1 to 3 is not disturbed during the course of their cross-examination as to why they should be disbelieved. If their version is accepted, it is a clear cut case of the prosecution that on the ill-fated day when the deceased Padmavathi died, Accused No. 1 was very much present there at the spot and demanded Rs. 10/- from her and when she refused to pay the same, he assaulted his own mother Padmavathi with an axe, by selecting the vital part of the body i.e., neck and caused her severe injuries, which resulted in her death.

Therefore, looking to the above facts of the case and the evidence of the prosecution witnesses, I do not find any strong reasons to differ from the observations and analysis made by the learned Sessions Judge in convicting the appellant/accused for the offence punishable under Section 304 Part-II of IPC. In my opinion, the learned Sessions Judge has properly analyzed the evidence of the prosecution witnesses that there was a quarrel between the mother and son regarding payment of Rs. 10/- demanded by the son and refusal of the same by the mother and the only one blow which was given by Accused No. 1 on the neck of deceased Padmavathi, resulted in her death. Considering all these circumstances the trial Court has rightly convicted the appellant/accused for the offence punishable under Section 304 Part-II of IPC. The prosecution did not choose to prefer any appeal against the sentence passed by the trial Court stating that the same is inadequate. Therefore, the judgment of conviction and sentence passed by the trial Court has reached the finality so far as the Prosecuting Agency is concerned.

Looking to the above circumstances, now the matter remains for consideration only with regard to the sentence passed by the trial Court. Learned counsel has tried to persuade the court by submitting that the accused is aged 19 years as on the date of the offence and he had only demanded for a paltry sum of Rs. 10/- and as the same was not paid by his mother, it appears, in a heat of passion he assaulted her and caused her death; The accused has no bad antecedents, therefore, the learned counsel requested the Court to consider that the accused is hailing from village and his future will be paralyzed if the sentence is allowed to be continued for seven years.

The conduct of the accused is concerned, of course prior to the incident there is no material available, PWs. 1 to 3, who are the neighbourers have not stated about the cordial relationship between Accused No. 1 and the deceased and the said witnesses have categorically stated that on the date of incident, there was a quarrel between appellant/Accused No. 1 and his mother (deceased) and there is no elucidation of any facts in the course of cross-examination that the accused in a sudden provocation of the circumstances committed such an offence. The nature of the weapon used is an Axe which is a sharp edged and hard weapon and the accused has also selected a vital part of the body i.e., neck of the deceased to assault her. Therefore, on analyzing the said aspects, nobody can say that the accused never had knowledge that his blow by using axe on the deceased may cause her death. Therefore, using of the deadly weapon and selection of the vital part of the body are also important aspects to be taken into consideration while sentencing. Further, added to that, immediately after the incident, he joined hands with Accused Nos. 2 and 3 to disappear and eradicate the evidence, by burying the dead body. According to him, as per Ex. P23, he buried the dead-body even before lodging the complaint. If at all some other person has committed the offence other than Accused No. 1, what was the necessity of so hurriedly burying the dead body; Further added to that, it appears when the compromise between PWs. 9 to 11 and the accused was not materialized, perhaps he might have lodged the complaint against PWs. 9 to 11 falsely implicating them into the crime. This also clearly goes to show that the accused has got sufficient ill-thinking matured mind and also he prepared to file a complaint exculpating himself and inculpating some other innocent persons in to the crime; Such person should not be casually handled and the Court has to deal with such person with an iron-hand. Even After implicating PWs. 9 to 11 it appears he has made attempts to misdirect the police to deviate the investigation from his side to other side. This also, in my opinion, is a serious attitude of the accused and that has been properly appreciated and taken into consideration by the trial Court. When a person is not fair and prompt to the law and he is not a law abiding citizen of the country, he should not be shown any leniency. Therefore, there is no reason to interfere with the sentence passed by the trial Court and consequently, on all the grounds, the appeal is liable to be dismissed.

Accordingly, the appeal is dismissed.