ESHWARAIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This appeal is directed against the conviction of the appellants under Section 302 read with Section 34 Indian Penal Code and imposing sentence of life imprisonment to both the appellants by the division bench of the Karnataka High court by judgment dated 1/04/1987 in Criminal Appeal No. 138 of 1985. By the aforesaid judgment, the High court set aside the judgment of acquittal passed in favour of the accused appellants by VIII Additional City and Sessions Judge, Bangalore City on 2/01/1985 in Sessions Case No. 32 of 1983.

(2.) The prosecution case in short is that the deceased Ramesh was a bachelor and was residing in House No. 6/5, 9th Cross, Adarsha Nagar, Chamarajpet, Bangalore. During the night between December 14 and 15, 1982, he was murdered by the accused persons. It is undisputed that the accused 2 Smt Mayamma, was a mistress of the deceased for about 3-4 years prior to the date of the incident and she was residing in Ramachandra Rao's Vatara in which the house of the deceased was also situated. The said accused was often visiting the house of the deceased Ramesh during the night time. She had filed an application claiming maintenance from her husband Public Witness 7 and had secured an order in her favour. While the said accused Mayamma was attending to her case for maintenance, she became acquainted with accused 1 Eshwaraiah, who was a Constable attached to the Wilson Garden Police Station and intimacy developed between accused 2 and accused 1. On 14/12/1982, both the accused witnessed a cinema show in Uma Talkies and returned together. They were seen near the house of the deceased at about 1 or 1.15 a. m. on 15/12/1982. Accused 2 tapped on the front door of the house and Ramesh opened the door. At that time accused 1 was standing at a little distance from the house. After accused 2 entered the house, accused 1 followed her and also entered the house. Public Witness 1 Ramachandra Rao who was residing in the house adjacent to the house of the deceased heard a sound of cries and he woke up. He came out and went to the house of his neighbour Hemoji Rao (Public Witness 3, a retired Constableand requested him to accompany him to find out what was the cause for the sound. Both of them went near the house but they did not hear any sound from the said house. Public Witness 4 Sundaresh, the elder brother of the deceased had his house nearby and Public Witness s 1 and 3 went to his house and woke him up and informed him about the sound which Public Witness 1 had heard. The three of them then came near the house of the deceased and Public Witness 4 tapped the door of the house but there was no response. Public Witness 4 thereafter left the place saying that he would inform his brother Ramachandra Rao and also his cousin Inderesh. The said two persons were informed and they returned immediately to the house of the deceased. Seetharama Reddy Public Witness 2, was a neighbour of the deceased and he woke up on hearing the barking of a dog and he came near the house of the deceased. Then Public Witness 1 and Public Witness S told him what Public Witness 1 had heard. Public Witness 2 also tapped the door of the house but there was no response. By that time, Public Witness 4 returned. One Raju known to Public Witness 4 happended to come there and Public Witness 4 requested Raju to go and inform the police. Raju thereafter went away and returned with two Police Constables Public Witness 5, H. Nanjundappa and another Police Constable Basavaraju. After the two police constables came to the place of incident, Public Witness 4 broke open the window-pane and flashed the torch inside. They did not see anything. Then the front door of the house of the deceased was broken open with the size stone MO 1 and all the said persons entered the house. By that time other residents of the Vatara also awoke including Public Witness 13 Vijaya. The light of the front door of Ramesh was switched on but nothing was seen there. The door leading to the bedroom was little open. They entered the bedroom and switched on the light but they did not see anything. When Public Witness 2 flashed the torch underneath the cot they noticed accused 1 and accused 2 couched below it, shivering all the while. On being called, both of them came out. They were given to the custody of the said two police constables. The deceased however, could not be seen there. The light of the Pooja room which was adjacent to the kitchen was switched on. At that stage, they saw the legs of the deceased in the kitchen. When they switched on the light of the kitchen room, they saw the deceased lying on his back in the kitchen and a bloodstained turkish towel (MO 5 was found lying at a little distance away from the body of Ramesh. Scratch marks were found on the face of Ramesh. His neck was swollen and blood was seen on the lips of Ramesh. Public Witness 4 went to his house and wrote a complaint Ext. P-3. He then went to the police station where Pratap Singh Sub-Inspector of Police Public Witness 14 was officer-in-charge. The complaint Ext. P-3 was presented at the police station at 2. 00 a. m. and the police officer registered the crime and issued first information report being Ext. P-11. Both the accused were arrested at 2.45 a. m. The Circle Inspector who on receipt of the information took over the investigation from Public Witness 14, noticed that the shirt and pant of accused I appeared to be stained with blood and he seized the said bloodstained wearing apparels by securing Panchas. The counterfoils of the two cinema tickets were also recovered from the accused 1 and the said tickets were also seized in the presence of the Panchas. The bloodstained towel, the stick with which the window-pane was broken, somenude photos of accused 2 being MOs 12 to 89 were seized by the police. The dead body was sent for autopsy. The post-mortem was conducted jointly by Public Witness 17 and Public Witness 18 at about 12. 00 noon on 15/12/1982 and postmortem was prepared being Ext. P-14.

(3.) Both the accused made statements under Section 313 Criminal Procedure Code and they also submitted written statements. Accused 1 had denied all the circumstances and contended that he was taken to custody from his house. Accused 2 though admitted that she was the mistress of the deceased and the photos seized by the police were her photos, she stated that the deceased was not only looking after her but also looking after her children. She denied that she had gone to the house of the deceased on the day of occurrence. She stated that the deceased had instructed her not to visit him on December 13 and 14, 1982 as he would have guests on those dates. Hence, she was all alone in her house and the police picked her up from her house. Dr C. B. Gopalakrishna (DW 1 a retired Professor in Forensic Medicine was examined by the accused as witness for the defence. It was contended by the accused that the death of the deceased was not homicidal in nature but he died a natural death and the said doctor DW 1 also gave expert opinion to that effect.