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2017 Supreme(Kar) 1146
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Ravi Malimath, John Michael Cunha, JJ.
Babu, S/o Late Yanadaiah – Appellant
Versus
State of Karnataka By Banaswadi Police Station Bengaluru – Respondent
Criminal Appeal No.1060 of 2014
Decided On : 03-07-2017
For the Appellant :Sri. R.P. Chandrashekar, Advocate
For the Respondent: Sri. Vijaykumar Majage, Addl. Spp.
Headnote:INDIAN EVIDENCE ACT, 1872 – Sections 3, 118 – Child witness – Accused, husband suspecting fidelity of deceased, wife and assaulting her with club – Minor daughter, aged 9 years squarely implicating accused in death of her mother – Trial Court ascertaining capacity and understanding of child witness, before recording her statement – Child victim deposing about manner of assault, after quarrel and also being slapped on screaming – Child witness also stating presence of unknown 'uncle' at spot, but no overt act attributed to him – Child witness however not mentioning details and whereabouts of unknown 'uncle' – Possibility of child witness fabricating story, for bailing out accused, her father – Testimony of child witness evidence contrary to case of prosecution was discarded and remaining evidence of child witness taken into consideration.
INDIAN PENAL CODE, 1860 – Sections 300, 302 – Murder – Accused, husband suspecting fidelity of deceased, wife assaulting her with club, resulting in her death – Daughter of accused and deceased, aged 9 years, squarely implicating accused in death of her mother – Child victim deposing about accused, father assaulting deceased, mother using club, after quarrel and also slapping her on screaming – Medical evidence establishing homicidal death of deceased as result of head injury inflicted by club – Incident taking place in matrimonial house of parties – Accused present in house at time of incident, not providing cogent explanation about death of deceased – Accused surrendering to police station after incident – Blood on clothes of accused and incriminating weapon matching with deceased – Guilt of accused established – Conviction, held, proper.
INDIAN PENAL CODE, 1860 – Section 300, Exception 4, 302, 304-I – Murder or culpable homicide not amounting to murder – Accused, husband suspecting fidelity of deceased, wife and parties having serious matrimonial disputes – Incident taking place in spur of moment and accused making no special preparation to assault – Accused, surrendering to police station after incident, showing his remorse – Nature of injury and use of club for assault, hinting towards intention of accused only to cause injury and not murder – Actions of accused falling within ambit of Section 304-Part I of IPC – Conviction of accused was altered from Section 302 to Section 304 Part I.
John Michael Cunha, J.
This appeal is directed against the judgment of conviction and order of sentence dated 29.09.2014 in SC No.898/2009 passed by the 13th Additional Fast Track Court, Bengaluru City, whereby, the appellant is convicted for the offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment and a fine of Rs.10,000/-, in default of payment of fine to undergo simple imprisonment for three months.
2. The appellant is the husband of deceased (Deepa). According to the prosecution, the appellant (hereinafter referred to as ‘accused’) was suspecting the fidelity of the deceased and used to abuse her. That on 03.05.2009 at about 10.00 p.m. he picked up a quarrel and assaulted the deceased with club on her head, due to which, she succumbed to the injuries in the matrimonial home at Subbaiahnaplaya within the limits of Banaswadi Police Station.
3. During the trial, the prosecution examined in all 15 witnesses as PWs.1 to 15 and got marked 27 documents as Exs.P1 to P27 and the material objects at MOs.1 to 8 in proof of the charge framed against the accused.
4. PW1 is the mother and PW2 is the sister of the deceased. Both these witnesses have spoken about the ill-treatment suffered by the deceased at the hands of accused and have also spoken about the incident as informed to them by PW3- the daughter of accused and the deceased. PW3 is examined as eye witness to the incident. PW4 is the brother of the deceased and his evidence corroborates the testimonies of PWs.1 and 2. PW5 is the pancha witness to the seizure of blood stained shirt (MO1) worn by the accused at the time of his apprehension, under the mahazar Ex.P2. PW6 is the pancha witness to the spot mahazar Ex.P3. PWs.7 and 8 are the immediate neighbors who have been examined to speak about the fact that on the night of the incident, they heard the quarrel between the accused and deceased and the scream of deceased in the matrimonial home. PW9 is the Medical Officer who conducted autopsy and issued postmortem report as per Ex.P9 and also examined the club used for the commission of offence namely MO4 and gave his opinion as per Ex.P7. PW10 is the Police Constable attached to Banaswadi Police Station who delivered the seized articles to FSL. PW11 is the Constable and PW13 is the Head Constable working in Banaswadi Police Station. According to these witnesses, they took custody of the accused at Commercial Street Police Station and produced him before the Station House Officer of Banaswadi Police Station. PW12 is the Forensic Scientist who examined the seized articles and issued report as per Ex.P10. PW14 is the Police Constable who took the dead body of deceased to Dr.Ambedkar College Hospital for postmortem and PW15 is the Investigating Officer. In the course of examination of these witnesses, the defence has marked Exs.D1 and D2 on behalf of the accused.
5. Upon hearing the learned Counsel for the accused and learned Public Prosecutor and on analyzing the entire material on record, the Trial Court believed the evidence of PW3 and relying on other circumstances proved by the prosecution found the accused guilty of the offence punishable under Section 302 of IPC and sentenced him as above.
6. We have heard the learned Counsel for the appellant and the learned Additional State Public Prosecutor on the grounds and contentions urged in the appeal filed by the accused challenging the impugned judgment of conviction and order of sentence.
7. Sri.R P Chandrashekar, the learned Counsel for the appellant/accused has tenaciously presented the argument using all the power of persuasion at his command. He has assailed the very basis of the prosecution case contending that the entire case of the prosecution is rested on the testimony of a solitary witness namely, PW3 - the daughter of accused. The prosecution has treated her as eye witness to the incident, but she was a child aged about 11 years at the time of her examination before the court. Her evide
