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1994 Supreme(Kar) 22
Karnataka High Court
State of Karnataka - Appellant
Versus
R.Varadaraju - Respondent
Decided On : 01-31-94
CRIMINAL APPEAL : 870 of 1988
A.J.Gunjal, AMICUS CURIAE, Y.R.JAGADISH
Headnote:(i) Evidence Act, 1872 - Section 80 Confession - Whether can be relied on when the Magistrate who recorded it was not examined?
Held: The circumstantial evidence by itself without the confession being looked into could prove the offence under Section 302, I.P.C. but the trial court looked into the confession even though the learned Magistrate who recorded it was not examined presumably acting under Section 80 of the Evidence Act and finding that there are circumstances which gave rise to grave and sudden provocation found the accused guilty under Section 304 Part-1, I.P.C. We gave our anxious thought to the propriety of the learned Sessions Judge looking into the confession when the evidence of the Magistrate who recorded it not being before him. It must be said that the learned High Court Government Pleader was fair enough to bring to our notice Section 80 of the Evidence Act.
When we drew his attention to the requirement under Section 164, Cr. P.C. that at any rate, the prosecution must prove that the learned Magistrate did comply with the requirement under Section 164, Cr. P.C. in the mutter of recording statement he relied on the presumption available under Section 80 of the Evidence Act and also the decision of the Supreme Court in the case of Madi Ganga v. State of Orissa (1981 Crl. LJ. 628), in which the Supreme Court pointed out that Section 80 of the Evidence Act makes the examination of the Magistrate unnecessarily. It authorise the Court to presume that the document is genuine that any statements as to the circum. stances under which it was taken arc true and that such confession was truly taken in accordance with law. They further pointed out that where the Magistrate had put to the accused all the necessary questions to satisfy himself that the confession was voluntary and, he had also appended the neccary certificate, it can be rightly acted upon without examining the Magistrate in the absence of any circumstance justifying the calling of the Magistrate as a witness. In fitness of things the Public Prosecutor in the Court below ought to have brought on record by examining at least an official of the Court to show that it was a confession 11 statement recorded by the Magistrate of the Court. However only in Advocate knowing Tamil was examined to prove the translation thereof when the trial Court marked it and read it into evidence. (Para 3)
(ii) Indian Penal Code, 1860. Section 30 Part 1 Conviction under- Offence of causing death of his wife. Circumstantial evidence proving the guilt of the accused. Altercation between the accused and the accused over her extra marital affair- Words used by his wife caused him mental suffering - Deceased com. Paid the manner of sexual intercourse began when he had refused to have intercourse with her. She even told him that if he was not willing to come she would get her paramour und under the very nose of her husband would indulge in such intercourse - Words enough for the accused to have grave art sudden provocation to cause her fatal injuries. Court justified in looking into this confessional statement which is in favour of the accused though retracted. Conviction u/s. 304 Part I upheld. Sentence of RI for two years only keeping in view welfare of his children.
Held: that it all depends on how a particular situation acts on the mind of the person keeping in view his social status and mental background to which man of his nature could be prone to. If we consider the background of the incident in question it is apparently clear that the whole night the altercation between the accused and the deceased over an affair with Bhaktavatsalam and naturally he said in his statement that he was much oppressed by the incident of the previous night. Even when he came home back the following afternoon again the deceased quarrelled with him and perhaps in the situation in which he was placed this was enough for him to loose his self control and take the chisel, his instrument of carpentry and then cause her fatal injuries. We have no hesitation in our mind that all these circumstances put together did cause provocation to him and the trial court was justified in looking into this confessional statement, which is in favour of the accused though retracted and found him guilty under Section 304 Part-I. I.P.C, (Para 3)
Result: Appeals dismissed.
( 1 ) BOTH these appeals arise out of the judgment of the trial Court under which on a charge under Section 302, IPC, the trial Court found the accused-respondent guilty under Section 304, Part-I, IPC and sentenced him to suffer R. I. far two years and giving set off of the period of detention already undergone under Section 428, Cr. P. C. directed him to serve the remaining sentence. As the appeals arise out of judgment of the trial Court finding the accused guilty for causing the death of his wife Bhagyalaxmi alias Bhagyamma on 27-3-1987 between 1. 30 and 2 p. m. in his house at Bangalore by assaulting her with at carpenter's chisel, both the appeals could be brought under a narrow compass. The prosecution case is that the deceased had adulterous connection with one Bhaktavatsala and this serving as a motive, on the afternoon of this incident, the accused came to his house when his two children were out, bolted the door from inside and then assaulted her to death by inflicting multiple injuries with the carpenter's chisel. He then came out which was noticed by P. W. 1 a next door neighbour and whose wife was also working rolling incense sticks along with the deceased then he followed the accused and took him to the police station at Rajajinagar, produced him before P. W. 12 and thereafter on his advice took him to the Basaveswaranagar Police Station, which was the jurisdictional police station, produced before PSI-P. W. 13 at 3. 30 p. m. and also filed his report which was treated as the first information by P. W. 13 and a case was registered under Section 302, IPC. Undisputedly the dead body of the said Bhagyalaxmi was lying in his house with multiple injuries when inquest was held and body subjected to autopsy. It was P. W. 17 who took over investigation and completed it. The accused was apprehended when he was produced in the police station by P. W. 1. He is said to have produced the chisel as well as the blood-stained clothes from his house where he had secreted them. As far as the prosecution evidence is concerned it was one of the circumstances proving the guilt of the accused. P. W. 1, P. W. 4 and P. W. 5 gave evidence of movements of the accused and P. W. 5 is none else than the daughter of the accused and the deceased. They spoke about they hearing cries from inside the house that afternoon, the accused coming out and then leaving the house and the body of the deceased with multiple injuries lying in the house. In addition to this circumstantial evidence there is also before Court the confession of the accused recorded by the 1st additional Chief Metropolitan Magistrate, Bangalore on 4-4-1987. The trial Court acting on this evidence given by the prosecution witnesses mainly P. Ws. 1, 4 and 5 and also considering the circumstances stated by the accused in his confession found that the case of the accused falls under Exception No. 1 of Section 300, IPC, found him guilty under Section 304, Part-I, IPC convicted him and sentenced to undergo R. I. for two years. The State has challenged the acquittal of the accused under Section 302, IPC in Criminal Appeal No. 870/1988 and in Criminal Appeal No. 871 of 1988 alternatively has sought for enhancement of sentence even for the offence under Section 304, Part-I, IPC in the event of the Court confirming the judgment of the trial Court.
( 2 ) AS the respondent-accused was unrepresented we appointed Sri A. J. Gunjal, Amicus Curiae to assist us in this appeal and he has ably done so.
( 3 ) THE circumstantial evidence by itself without the confession being looked into could prove the offence under Section 302 IPC but the trial Court looked into the confession even though the learned Magistrate who recorded it was not examined presumably acting under Section 80 of the Evidence Act and finding that there are circumstance, which gave rise to grave and sudden provocation found the accused guilty under Section 304 Part-I IPC. We gave our anxious thought to the proprie
