http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: STATE OF KARNATAKA

       Vs.

RESPONDENT: GANGADHARAIAH

DATE OF JUDGMENT:       27/08/1997

BENCH: M.K. MUKHERJEE, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mukherjee, J.      This 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. 544 of  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. 2.(a)     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. (b)  In 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. On that  report a case was registered against the respondent and  on   completion  of   investigation  charge  sheet  was submitted against him. 3.   The  respondent   pleaded  not  guilty  to  the  charge

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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. 4.   To  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. 5.   On 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. 6.   We 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 wrong. 7.   In 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 crime. 8.   It 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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. That 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. 9.   The 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. 10.  In 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 the murder. Indeed, 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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. 11.  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.