SHIVAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This appeal, by special leave, has been filed by Shivappa s/o Bundappa who was accused No. 2 in the trial Court and appellant No. 2 in the High Court and is directed against the order of the High Court of Karnataka dated 21st September, 1990 upholding his conviction and sentence for the offence under Section 302, IPC. The appellant alongwith Smt.Sudha (A1) and four others were tried for various offences in connection with the murder of Suresh Singhi on 4-12-1986 at about 3.00 a.m.

(2.) According to the prosecution case Smt. Sudha (A1) was working as a Nurse in the Primary Health Centre at Ullagaddi Khanapur. She was married to the deceased-Suresh Singhi. The deceased used to live at Belgaum but used to visit his wife. A1 at Ullagadi Khanapur, where she was working, quite often. The appellant Shivappa was working as Health Guide at the Primary Health Centre at Ullagaddi Khanapur. The husband of Sudha was addicted to drinking and there used to be frequent quarrels between the couple. In order to raise money for buying liquor, the deceased used to sell household articles,if he could not get cash from his wife. The deceased also suspected his wife to be having illicit relations with Ramchandra Hanamant Pujari (A4) who was working as a Basic Health Worker and with Dr. Ashok Madhukar (A6), who was working as a Medical Officer at the Primary Health Centre, Ullagaddi Khanapur at the relevant time. The deceased, after consuming liquor, shortly before the day of occurrence went to the house of A4 and accusing him of having illicit relations with his wife (A1) abused him. He thereafter went to the house of A6 and abused him also in the presence of some of his patients accusing him that he was having illicit relations with his wife. On account of these accusations, the relations between the deceased, A1, A4 and A6 had become strained. These three accused along with the appellant, A3 and A5 used to meet and discuss the behaviour of the deceased. It is alleged that on 10.10.1985, the appellant along with A4, A5 and A6 met in the Gotur Inspection Bungalow and hatched a conspiracy to do away with the deceased by causing his murder. It was planned that the murder would be committed during the night and the dead body would be thrown on the Poona-Bangalore road to give it the complexion of an accident. It was also decided that A1 would thereafter file a complaint with the police saying that her husband had died in a motor accident and when the dead body would be brought for post-mortem examination before the Medical Officer, A6, he would certify that the death had been caused by an accident. On 2-12-1985, the appellant along with A1,A4 and A5 worked out the plan for committing the murder of the deceased. On 3-12-1985 the deeased came to visit his wife, A1 at Ullagaddi, Khanapur. As per the plan in the early hours of the morning of 4-12-1985, A3 went to the house of A1 and asked her to come for a delivery case. A1 along with her husband (deceased) and A3 went towards Henchinal and on the way the appellant, along with A4 and A5 met them. A4 informed A1 and A3 that the patient had already delivered the baby and they could go back to their house. Thereupon, the appellant along with A1, A3, A4 and A5 and the deceased proceeded towards Ullagaddi Khanapur. When they had reached near the foot-path leading from Henchinal cross to Ullagadi Khanapur, the deceased was caught hold of by A1 to A5. A rope was tied round the neck of the deceased and his wife A1 pulled the rope thereby causing the death of the deceased. As per the original plan the dead body was brought and laid on Poona - Bangalore road. To lend authenticity to the story of an accident, A1 went to the house of PW2, located nearby, to bring water telling him about the accident of her husband. Thereafter, she prepared the complaint Exh. P-52 and went to the police station at 7.15 a.m. and lodged the report with PW 18 the In-charge of the police station. An FIR in Crime Case No.221/85 for the offence punishable under Sections 279/304 A, IPC and Section 89 of the Motor Vehicles Act was registered on the basis of the said complaint. The dead body was sent for post-mortem examination to A6. However, A6 informed PW.18 that the case being a complicated one, the post-mortem examination may be got done through some other doctor. Consequently, a requisition was made to the Medical Officer, Primary Health Centre, Daddi to get the post-mortem of the dead body conducted. The Investigation Officer during the course of investigation recorded the statements of various witnesses. After the receipt of the post-mortem report, which disclosed that the death had not been caused as a result of injuries received in any road accident, the viscera of the deceased was sent for chemical examination to Bangalore. After the receipt of the post-mortem report an offence under Section 302, IPC was registered. It was during further investigation that A1 volunteered to show the place where offence had been committed and later on the appellant volunteered to show the place where the rope had been burnt. Both A1 and the appellant also volunteered to make confessional statements. The investigating officer, PW 25 sent a request report to the Judicial Magistrate, Ist Class, Hukkeri to record the confessional statements of A1 and the appellant. The appellant was produced before the Magistrate on 21-7-1986 and the Magistrate adjourned the recording of the statement till 22-7-1986, so that the appellant could reflect in the meantime. The appellant was remanded to the sub-jail after the Magistrate had recorded preliminary statement of the appellant after asking him various questions. The confessional statement of the appellant was thereafter recorded by the Magistrate, PW17 on 22-7-1986. Six weeks later appellant retracted the same by addressing a communication Ex.D1 to the Magistrate.

(3.) The confessional statement of the appellant, recorded under Section 164, Cr. P-C. by PW17 on 22-7-1986, was the only piece of evidene on which the trial Court relied upon and convicted the appellant. In the High Court,the submission made on behalf of the appellant that the confessional statement recorded by PW 17 was neither voluntary nor true and trustworthy was repelled. The High Court found that the confessional statement, even though retracted at a later stage, was voluntary and true and held that the trial Court had rightly relied upon the same. Consequently, the conviction and sentence of the appellant for the offence under Section 302, IPC was upheld. Hence this appeal.