K M BALAKRISHNA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal is directed against the conviction on the charge of murder recorded by the learned Sessions Judge, Kodagu in sessions Case No. 7 of 1991. The appellant, a carpenter and a resident of Kunjila Village was married to deceased Janaki a few years prior to the incident. His brother Chengappa was married to Janaki's sister and these two brothers along with their wives originally resided together at Kunjila in the house of their father. However, after some time, the brothers decided to stay separately and Chengappa and his wife were residing in another house at a short distance therefrom. Deceased Janaki was supposed to have been unduly close to the brother Chengappa which was one of the possible reasons for the brothers falling out and the record indicates that there was a lot of resentment which ended up in quarrels and hostility between the accused and Janaki as the husband had strongly disapproved of the wife's conduct. Not only this, the husband had left the house on more than one occasion which appeared to be principally because of this situation and we find that at the point of time immediately preceding the incident which took place on 1-9-1990, that the accused had been away from the house for quite some time. Janaki used to take her young son and go to chengappa's house and sleep there at night and come back to her own house in the morning. About eight days prior to the incident there was a violent quarrel between Janaki and her mother-in-law which resulted in Janaki sustaining an injury on her nose pursuant to which a police complaint was lodged and some efforts were made to placate the parties. On the morning of 1-9-1990, Janaki left the house of Chengappa where she had spent the night, at about 7. 30 A. M. and went back to her own house in order to attend to the cattle. Since she did not return for a long time, Chengappa sent his son Satisha who came back and told Chengappa that the house was locked. Shortly thereafter, P. W. 10-Thimmaiah was returning after watering his fields and he saw the accused coming from the opposite direction with bloodstained clothes. On an enquiry being made by thimmaiah, the accused disclosed that he had killed his wife after which he went and boarded a bus which took him to the police station. The accused surrendered at the police station and made a statement which came to be recorded in which he inter alia stated that he had killed his wife with an axe. The police recorded the statement in question which is Exhibit P-l and which document is the subject-matter of lot of debate in this appeal because it is regarded as a confession made to a Police officer. The Police Officer who found that the clothes of the accused were bloodstained took charge of the same under a panchanama and it is his case that the accused led the panchas to the house and opened the lock with the key that is produced by him. Inside, the police found the body of Janaki lying in a pool of blood with severe head injuries and the axe in question which was also bloodstained lying close by. An inquest panchanama was held and the clothes of the deceased were taken charge of and the axe was also taken charge of under a panchanama. On completion of the investigation, the accused was charge-sheeted and after committal to the Court of Sessions he was put on trial. The defence of the accused was of total denial and the learned trial Judge after assessing the evidence convicted the accused for the offence punishable under Section 302 of the IPC. The accused preferred an appeal against his conviction and sentence through the Jail and since he was unrepresented, this Court appointed Mr. Ram Doreswamy to appear on his behalf as amicus Curiae. Before proceeding further with the judgment, we would like to record our appreciation for the fine handling of the case by the learned Advocate who has done an excellant job by researching each of the points of law that is involved in this appeal in an admirable manner. We do hope that many of the other Advocates who have witnessed this hearing would do an equally good job on future occasions.

(2.) THE main ground of attack that has been projected by the appellant's learned Advocate, is that this is a case in which the learned Trial Judge has sought to place indirect reliance on the confession of the accused Exhibit P-l. Appellant's learned advocate pointed out to the Court that the accused is alleged to have made a statement to the Police Officer when he went to the police station and the Police Officer immediately reduced the statement to writing and obtained the signature of the accused on it. The learned Trial Judge has carefully verified the signature with the admitted ones and has come to the conclusion that regardless of the accused having retracted from that statement at the time of the trial that the signature is in fact genuine and therefore the statement must be attributed to him. The appellant's learned Advocate was very strong with regard to the legal error committed by the learned Trial Judge in having referred to the statement and in having placed even indirect reliance on it in different parts of the judgment, because a perusal of the judgment indicates that this is really the bed-rock of the conviction that has been recorded.

(3.) RELYING on the provisions of Section 25 of the Evidence Act (for short 'the Act') as also Section 26, the appellant's learned advocate submitted that for good reason, the law places a total bar on a Court relying on statement made to a Police Officer by an accused and the learned Advocate in the course of the decisions relied on by him, pointed out to us that it makes no difference whether the statement was made prior to the point of time when the accused was arrested as long as it was a statement to a Police Officer by a person who was subsequently arrested by the police in relation to that very offence. More importantly, learned Advocate submitted that where the law prescribes a total bar to the admissibility in evidence of such a statement that a Court must disregard it in its totality which means that a Court will have to proceed on the basis that such a statement is absolutely non-existant and the error committed by the learned Trial Judge in this case is that whereas he accepts legal bar under Section 25 of the Act, he has still sought to place reliance on the statement at times directly and mainly indirectly for purposes of recording findings.