GOPALA SON OF THIMMAIAH Vs. THE STATE OF KARNATAKA BY BIDADI POLICE RAMANAGARA TALUK. BANGALORE RURAL DISTRICT

JUDGEMENT

(1.) WE notice that this is a legally aid brief. We appoint Vishwanatha Poojari K. as Amicus curie to assist the Court. The appellant -accused is before this Court. He has been convicted by the learned Sessions Judge for the offence punishable under Section 302 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. . 5,000/ -. We notice that the accused is in judicial custody since 6.4.2003.

(2.) THE matrix of the prosecution case is that complainant PW1 Chikka Hanumaiah is the elder brother of one Huliyappa and is the resident of Kenchana Kuppe village. The said Huliyappa is no more and during his life time he solemnized marriage of his daughter Muthamma with the accused Gopala and during the wedlock deceased Muthamma gave birth to a son and a daughter. The accused and the deceased wife Muthamma were also the residents of Kenchana Kuppe village. The accused was eking out his livelihood by doing coolie work and most of the time was under the influence of alcohol and he was abusing and assaulting deceased Muthamma. The deceased Muthamma complained of the attitude of the accused to her neighbours and also about the cruelty meted to her by the accused. On 3.4.2003 at about 10.00 a.m. the accused who was under the influence of alcohol came to the residence and started abusing his wife. When she questioned as to the reason of abusing her the accused all of a sudden took out a knife and assaulted and inflicted injury on her abdomen. She fell un -conscious and the accused fled away from the house. The deceased Muthamma created a hue and cry, which attracted the attention of the neighbors and PW2 Dasappa brother of accused and PW5 Sannamma wife of PW2 came and they immediately took the deceased Muthamma who was then only injured to Bidadi Primary Health Centre. There she was treated by Medical Officer PW3 Dr. Suma attached to the Primary Health Centre. On 5.4.2003 on the information received from the medical officer PW3, Dr. Suma, the PSI PW10 M.K. Thammaiah then attached to Bidadi Police Station rushed to the Bidadi Primary Health Centre and in the presence of the officer recorded the statement of injured Muthamma as per Ex.P7 and after coming to the police station based on the statement of injured registered a case in Crime No. 140/2003 for the offence punishable under Section 307 of Indian Penal Code and submitted the First Information Report to the Court as per Ex.P17. The PS1 -PW10 had also made arrangements to shift the deceased Muthamma immediately to Victoria Hospital, Bangalore and on the same day on 5.4.2003 he visited the scene of occurrence and conducted the spot mahazar as per Ex.P18 in the presence of PW6 Mutturaja brother of the injured. He also deputed his staff for apprehending the accused and accordingly the accused was arrested on 6.4.2003. After his arrest his voluntary statement was recorded as per Ex.P19, which led to the discovery and recovery of the knife. The knife, which was used in the commission of the offence, was found in a canal. It is marked as M.O. No. 1. The accused was produced before the Court on the same day with a remand application and he has been in custody as observed since then. PW10 received another information on 10.4.2003 that, the injured Muthamma had died and another case was registered and a second First Information Report as per Ex.P21 was sent to the Court for the offence punishable under Section 302 of Indian Penal Code. The second First Information Report was registered on the basis of a complaint lodged by PW12. PW10 handed over the further investigation to CPI, PW9 - H. Rudrappa who took up further investigation on 11.4.2003 and after verifying the investigation papers he visited Bidadi hospital mortuary and conducted inquest proceedings on the body of the deceased as per inquest mahazar Ex.P15. At the time of conducting the inquest proceedings, he examined the witness i.e., PW6 Mutturaju, CW17 Ramakrishna, CW13 - Honappa and recorded the statements. After the autopsy on the body on 11.4.2003 and issued a post mortem report as per Ex.P16. On the same day the knife M.O. No. 1 as per Ex.P13 was recovered from the canal and PW7 is the signatory and witness to the said recovery. Thereafter the CPI examined the witness on 13.4.2003 and recorded the statement of brother of the accused and PW5 the sister -in -law. After due investigation charge sheet is filed alleging that the accused had committed the offence punishable under Section 302 of Indian Penal Code. The matter was committed to sessions.

(3.) MR . Vishwanatha Poojary K, learned counsel appearing for the accused -appellant submits that the so -called dying declaration itself cannot be believed inasmuch as there are two different versions as to how the incident has happened. He submits that in the first instance injured makes a statement indicating that the accused inflicted the injury. But however, the continuation of the said statement would disclose that it was self -inflicted injury. In the circumstances, he submits that the dying declaration itself cannot be relied upon to drive home the guilt of the accused. He further submits that apart from the dying declaration the prosecution has not produced any evidence. He submits that all the witnesses have turned hostile including PW7 who was a signatory to the recovery mahazar. Another contention raised by him is that the FSL report though produced was not marked during the course of trial Hence, the same cannot be looked into for any purpose. In the alternate he submits that if this Court were to come to a conclusion that the accused had inflicted those injuries, it cannot be a case of Section 302. But however, it is required to be dealt as one under Section 304 Part 1 or Part 2. He submits that since the date of the arrest i.e., on 6.4.2003 the accused is in custody.