Karnataka Vs. Gangadharaiah  INSC 689
(27 August 1997)
MUKHERJEE, D.P. WADHWA
appeal by the State of Karnataka is directed against the judgment
and order dated August
25, 1987 rendered by
the Karnataka High Court in Criminal Appeal No.
1986, whereby it set aside the conviction and sentence recorded against the
respondent under Section 302 I.P.C. by the First Additional City Session Judge,
Bangalore for committing the murder of his
wife, Gangaboramma @ Papachhi and acquitted him.
According to the prosecution case, the respondent married the deceased in or
about the year 1971 and since then they were living together in his native
village Kanakkuppa in the district of Tumkur. While residing there the
respondent used to frequently come home drunk and beat and ill-treat the
deceased. In expectation that good sense might prevail upon him if he was
shifted to some other place, the parents of the decease brought them to Bangalore and put them up in a house in
Vivekananda Block, Place Guttahalli. Their expectations were however belied as
the respondent continued to come home late and under the influence of liquor,
quarrel with the beat the deceased.
the evening of April
19, 1985 the
respondent started quarrelling with the deceased and when Chinnathambi (P.W.5),
neighbour of the respondent, tried to intervene the deceased called him names
and sent him back. At or about 9 P.M. when the quarrel reached a high pitch the
deceased asked Kala (P.W.4), another neighbour, to go and fetch her
(deceased's) mother (P.W.6) who lived nearby. Before however P.W.4 and P.W.6
could reach the house of the deceased, the respondent gave a knife blow on her
neck which resulted in a severe bleeding injury. On being so assaulted she
started running away but fell down in front of the house of Kempaiah who lived
nearby. Soon thereafter Kala (P.W.4) and Narasamma (P.W.6) reached there and
saw Papachhi lying dead. P.W.6 then went to Vyalikaval Police Station and
lodged a report.
that report a case was registered against the respondent and on completion of
investigation charge sheet was submitted against him.
respondent pleaded not guilty to the charge levelled against him and contended
that his co-brother Guddalah was liked by his parent-in-law but he was not. In
his absence Guddalah used to visit his house and since the death of his wife
they have been living together. After his examination under Section 313 Cr.P.C.
the respondent filed a written statement in his defence (Ex. D-5) wherein he
took a plea of alibi also stating that on April 16, 1986 he had gone to Kanakuppe village to
attend a fair and during his absence Guddalah had murdered his wife and had
taken away her jewels and other articles.
bring home the charge levelled against the respondent, the prosecution relied
upon the ocular version of the incident as given out by Chinnathambi (P.W.5),
oral dying declaration made by the deceased before some femal neighbours which
was over-heard by Narasimhamurthy (P.W.8) and recovery of a knife from the
trouser pocket of the appellant at the time of his arrest. Besides, the
prosecution laid evidence through Dr. S.B. Patil (P.W.7), who held the post
mortem examination upon the deceased, to prove that she met with a homicidal
death owing to injury sustained on the neck.
a detailed discussion of the evidence the trial Court found P.Ws.5 and 8
reliable and as their evidence stood corroborated by the prompt lodging of the
FIR by P.W.6 and the recovery of the knife from the respondent convicted him.
In appeal the High Court concurred with the finding of the trial Court that the
deceased met with a homicidal death but differed with the other findings.
have heard the learned counsel for the parties and gone through the entire
record. Our such exercise persuades us to hold that the reasons given by the
High Court for setting aside the conviction of the appellant are patently
view of the concurrent finding of the learned courts below that on the fateful
night Papachhi met with a homicidal death owing to an injury inflicted on her
neck and the fact that the above finding was not assailed before us, the only
question that require an answer in proving that the respondent was the author
of the above crime. To answer this question it will be necessary to first
examine the evidence of Chinnathambi (P.W.5), the sole eye witness to the
is not in dispute that P.W.5 is the next door neighbour of the respondent. He
testified that in the evening in question, he came back from his place of work
around 5.00 P.M. and since then was in his house. At
or about 6 P.M. he found that the respondent and
his wife had started quarrelling with each other. He then went to their house
and asked the respondent to stop the quarrel, to which he replied that as he
(P.W.5) was a Tamilian, he should not intervene into their matter. P.W.5 next
stated that at or about 10.00
P.M. while he was
sitting in front of the door of his house, he saw the respondent inflicting a
knife blow on the neck of the deceased. The deceased then started running away.
After going some distance, she fell down on the ground and met with her death.
He lastly stated that the respondent then left the house through the rear door.
In disbelieving his evidence the High Court first referred to the following
answer elicited in his cross examination : "At 7 P.M. I tried to intervene in the quarrel but they did not allow.
Then I went in my house" and observed that if he went inside his house his
evidence in the examination-in-chief that he was sitting throughout in front of
the door of his house - so as to enable him to see the assault - could not be
believed. This observation of the High court is clearly unsupportable P.W.5
testified that since evening he was in his house and at or about 10.00 P.M when he was sitting in front of the door of his
house the assault took place. When a person is in his house continuously for
three or four hours, it is reasonably expected that he would occasionally come
out. The High Court was, therefore, not at all justified in inferring from the
above noted answer elicited in cross-examination that P.W.5 could not have been
an eye witnesss to the incident. Another reason which weighed with the High
Court to discard his evidence was that he admitted in cross-examination that
the only thing he was that Papachhi was lying on the road, which, according to
it, clearly meant that he did not see the incident. The above observation of
the High Court is also unsustainable for the above statement of P.W.5 has to be
read in the context of his entire testimony and not in isolation. When the
evidence of this witness is read as a whole it is abundantly clear that what
P.W.5 intended to say was that after the deceased fell down the saw her dead
body only. In other words, the above statement related to a stage after the
murder was committed and not prior to that. As P.W.5 lived in the adjacent
house he was the most probable and natural witness.
apart, when nothing could be elicited in his cross- examination to indicate
that he was inimically deposed toward the respondent or was interested in the
cause of the prosecution it must also be said that he was a completely
disinterested witness. We are, therefore, of the opinion that the High Court
was not at all justified in disbelieving the evidence of P.W.5.
evidence of P.W.5 gets ample support from that of Smt. Kala (P.W.4), whose
house also adjoins the house of the respondent. This witness testified that in
the night in question, she found the respondent. This witness testified that in
the night in question, she found the respondent and the deceased quarrelling.
Then the deceased called her and told to fetch her (deceased's) mother. She
then went to the house Narasamma (P.W.6), mother of the deceased, and reported
that the respondent and the deceased were quarrelling with each other. To that,
her mother told P.W.4 that as they frequently quarrelled she would go after she
had collected water from the tap. Thereafter, both of them proceeded to the house
of the deceased only to find her lying on the ground in front of the house of
one Kempaiah with bleeding injury. The evidence of P.W.6 is also in conformity
with the above evidence of P.W.4.
our considered view, however, the most important circumstance which goes a long
way to prove the prosecution case and which was not at all considered by the
High Court - is that no body other than the respondent could have committed the
murder. The evidence on record clearly indicates that at the time the incident
took place the only persons inside the house of the respondent were - beside
the respondent - the deceased and their two minor children. When this
circumstance is considered in the light of the unimpeachable evidence on record
that the death took place in course of a quarrel that took place between the
respondent and the deceased in their house the only legitimate inference that
can be drawn is that nobody else other than the respondent could have committed
even if the ocular version of the incident as given out by P.W.5 is left out of
the consideration as also the other circumstances brought on record by the
prosecution, namely the dying declaration and the recovery of the knife from
the possession of the respondent, still then the respondent must be held to be
guilty for the murder of his wife. This inference of ours gets further
assurance from the fact that the respondent who was seen by all the witnesses
in his house at the material time ran away from the house immediately after the
death of his wife and he could be apprehended only after three weeks. On the
conclusion as above we need not go into the question whether the dying
declaration or the other circumstance relied upon by the prosecution stand
proved or not and, for that matter, whether the findings of the High Court in
this regard are proper.
For the reasons aforesaid, we are constrained to say that the High Court has
reversed the findings of the trial Court without properly displacing the cogent
reasons given by the latter and the High Court did not consider the vital
points in the case. We, therefore, allow this appeal, set aside the impugned
judgment of the High Court and restore that of the trial Court.