1990 Supreme(Kar) 146

Karnataka High Court
Judges : P.K.Shyamsundar,K.B.Navadgi
UMAKANTHA RAO - Appellant
Versus
STATE OF KARNATAKA - Respondent
C/W. Cr1. 5 Of 1989
Decided On : 03/30/1990
Advocates Appeared :
K.H.N.KHURANGA, N.Samba Murthy

Headnote:(i) Evidence Act, 1872 - Section 60. Ambit & scope of - Rule against reception of hear say evidence - Whether if the person before whom the accused is said to have made the statement having not reiterated it before the Court the repitition of the same by the person to whom the statement was transmitted would render such evidence hearsay and therefore inadmissible? - English and Indian Law. (Paras 23 to 28).

       (ii) Criminal Procedure Code, 1973 - Section 154 - First Information Report recorded under - To what use such a report could be put to - Supreme Court in Nisar Alis Case; AIR 1957 S.C. 366.

       Held: That the prosecution itself had successfully contradicted P.W. 2 with reference to her own statement, the earliest in the chain where she had categorically implicated her husband. But then now that she has chosen to recant from that stand, the disowned statement at Ext. P.3 except for making out that P.W. 2 who had made statement had wilfully gone back on it, with the obvious intention of saving her husband does not go any further and certainly will not assist in establishing the charge riveted against the accused of having killed the children and later of having disposed off the dead bodies. If this be the only out come of the hostile attitude of the P.W. 2, however much one may blame her for the same certainly does not however bring any solace to the prosecution who will have to depend on other evidence if available for establishing the charge levelled against the accused. The first information report at Ext. P3 after its retraction cannot now be used to gun down the accused on the charge of having murdered his children.

       (iii) EVIDENCE. Murder Case - Based purely on circumstantial evidence - Requirement of establishing a motive for the commission of crime in such cases - Judicial decisions. (Paras 29 & 30).

       (iv) Indian Penal Code, 1860 - Section 302 - Conviction under. Appeal against - Death of two children who had barely completed 3 months of their existence - Homicidal nature of their death has not been established – presence of the accused, father of those children, in the house on the night of occurrence is not established on clear and cogent evidence - Motive for the crime for incriminating the accused has not been established - Evidence on record points out their mother a likely participant Conviction recorded is not legally sustainable.

       Held: These features in the prosecutions case makes her almost an accomplice and therefore whatever she had stated to the Police from which she had now backed out completely, cannot be accepted as gospel truth. It must also be remembered and we are referring to the fact that P.W.2 had an undisputable grievance against the appellant because he had taken a concubine resulting in P.W. 2 being forced to share not merely the appellant with the other woman but his means of support to the family as well a circumstance that once against gives rise to a lurking suspicion that there might have been an as assiduous effort by her to involve the accused and later realising the serious consequences that may stretch alas far as the husband being either jailed for life or even being hanged the serious consequences stretching as far as the husband being either jailed for life being hanged which is presently the situation in which the husband is placed, the woman had possibly committed on volt face in a frantic effort at rescuing the husband. The evidence of the prosecution opening up so many options one fails to see how they can claim to have salvaged their case from the shambles into which it had been reduced to, with the crucial witness like P.W. 2, P.W. 12 having withdrawn their support. It therefore seems to us, the Court-below was in error in accepting the prosecutions case as having been so fully and completely established justifying, the conviction of the accused for the offence of murder an also the sentence imposed on him.

       (v) Indian Penal Code, 1860 - Sections 302 and 201 - Conviction for the offences under Charge against the accused for the offence relating to the murder not established - The accused having been acquitted of the principal charge of murder the lesser charge of the offence u/s 201 of the Code should fall to the ground.

       Further held: But, then, since the offence under s. 201 IPC forms subject matter of a substantive charge and a person can be held independently accountable for the same, we think it appropriate to deal with an advert slightly to the evidence touching the complicity of the accused with reference to the aforesaid charge. We straight away point out that the evidence in this behalf is hardly of any materiality since it concerns merely of the endeavour by the accused in pointing out the two dead-bodies and to a spot further from where a piece of white cloth M.O.2 has been recovered. We may recall at this stage that the bodies had been discovered by the Police even before the accused was taken into custody the Police and brought to the spot. Therefore, if the accused after having been brought to the spot had pointed out to the children, there is nothing new about it since the Police were already aware of that development apropos the recovery of a piece of white cloth M.O.2 from the gutter in question. It is needless to add that the and circumstance cannot be treated as incriminating. It is however contended that the said piece of cloth M.O. 2 had been used for wrapping up the children. Suffice it to state that a piece of cloth like M.O.2 is in itself not sufficient to sustain even the charge under Section 201 of the Indian Penal Code. Therefore, it is we acquit the accused of the aforesaid charge as well.

       (vi) CRIMINAL LAW - SENTENCING PATTERN - Indian Penal Code, 1860 - Sections 302 & 201 - Conviction for the offences under - Killing of two children, 3 months old by their father - Penalty of sentence of death by hanging - Whether the case warrants imposition of maximum sentence prescribed? - (No).

       Held: It seems to us that even if the prosecutions case was held to be true and gruesome that even if the prosecution had proved their case to the hilt, this however was not a fit case in which the learned Judge could have chosen to hang the man. Life it must be pointed out is at all times an ephemeral entity which more often than not come to an end abruptly and often times without even any reason is a person in the best of health and the pink of bodily condition may find himself at deaths door being involved in a road accident for which he was not to be blamed at all Again a person may die in circumstances which that all times may appear to be extremely strange and that is why we think life in itself ephemeral but if it is made more so by judicial sentencing that is wholly arbitral in character it may probably lead to frowns and the raising of eye brows at such needlessly extravagant depending on of judicial authority.

       Further held: The learned Judge appears to be somewhat over-swayed by his sympathy for the children and the fact that they had been snuffed-out even before they could bloom. No doubt the story makes very pathetic reading but if we ask ourselves the question as to why this man if he had committed the crime, and had he done it at all, the answer is to be found in the supposed statement of P.W.2 to P.W. 6 that the children would be an economic burden and probably felt a lurking fear of his inability to provide for them resulting in the more severe and a concomitantly sordid likelihood of those two babies growing up and turning victims of social evils to which poverty very often drives girls in a case where parental support is either not forthcoming or is too inadequate for survival not to mention the limitation of society to provide succour to young girls, for pursuing a gainful living. If haunted by fears of his own children being driven to the streets, he had raised his own hand to strike them down, while there can be no question that what he had done was an unmitigated crime but favour if we were to order his neck to be stretched on the gallows, we would then be hanging people day in and day out even when they are driven to commit crimes while they are distraught with misery, hunger and poverty, an event not so rare of un-common enough in this country, so as to sit up and feel startled and therefore not which the case which belonged to the rarest of the rare category of that alone merits according to the dicta in Bachan Singhs case, the extreme penalty of death. It thus requires little to see that this case did not merit the inflicting of penalty of death but then such a prospect does not haunt the accused any more in the light of the order we have just made setting aside the conviction and sentence imposed on him.

       Result: Appeal Allowed.