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PETITIONER: STATE OF KARNATAKA

       Vs.

RESPONDENT: LAKSHMANAIAH

DATE OF JUDGMENT21/07/1992

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) RAMASWAMY, K.

CITATION:  1993 AIR  100            1992 SCR  (3) 579  1992 SCC  Supl.  (2) 420 JT 1992 (4)   326  1992 SCALE  (2)45

ACT:      Indian Penal Code, 1860 :      Section 300-Murder of wife-Acquittal of husband by High Court-High Court not considering P.Ws. evidence of husband’s maltreatment  and  assault  of wise for  money  -  regecting evidence on flimsy ground of discrepancies-Factum of accused absconding  not  discussed-Acquittal set  aside-Trial  Court order of conviction and sentence-Upheld.

HEADNOTE:      The  respondent in the appeal was tried for the  murder of  his  wife  and also  for  stealing  his  mother-in-law’s property.   The  prosecution  alleged  that  the  respondent accused used to demand money from his mother-in-law  through his  wife and he had executed two promissory notes  for  Rs. 2,000  and Rs.3,000 in favour of his  mother-in-law  towards the  money he had borrowed from her.  He became  disgruntled when  his mother-in-law refused to comply with his  demands, and his wife declined to help him in getting more money.  As a   consequence   he  started  abusing,   ill-treating   and assaulting his wife.  A few months before the occurrence the mother-in-law  brought her daughter and her children to  her house.   After sometime the accused also came to  reside  at the house of his mother-in-law.      On January 12, 1979, a close relation of the mother-in- law  came to their house at 4 p.m.  On that day  apart  from the  accused, his wife and two children,  the  mother-in-law and  her  younger daughter were present in the  house.   The accused  gave Rs. 30 to his wife which she further  gave  to her mother for buying clothes for the children so that  they could  wear  the same on the ensuing  ‘Sankranti’  festival. The  mother-in-law  and  her younger daughter  went  to  the market  to  buy clothes for the children.   Thereafter,  the accused  gave  Rs.  2 to the relative and sent  him  to  the market  to  bring ‘heralikayi’-a vegetable.   Therefore  the accused  was left alone in the house with his wife  and  two small  children.   When his mother-in-law  and  her  younger daughter  came  back  from the market  they  found  the  two children  crying outside the house.  On entering  the  house they did not find anybody                                                        580

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inside,  and on further search they found the  dead-body  of the wife in the bathroom, her head ducked in the bucket full of water.      A case was registered with the police.  The accused was found absconding, and was arrested on January 16, 1979.  The accused was put up for trial.  There was no direct evidence. The prosecution relied on the motive as disclosed by P.W.26, the  mother-in-law, P.W.27 her younger daughter, and PWs  24 and 25.  The presence of the deceased and the accused in the house  of  P.W.  26 on the evening of January  12,  1979  as deposed by P.W.17 the relative and P.W. 26 and P.W.27.   The accused sending P.W.17, P.W.26 and P.W.27 to the market  for purchasing  of clothes and vegetable and the deceased  being left  alone with the two small children.  The accused  going towards  the bus stop holding his suit-case in his  hand  on the  evening  of  January 12, 1979 as  seen  by  P.W.14  and corroborated  by P.W. 20 and P.W.22, and the conduct of  the accused  in absconding from the evening of January 12,  1979 till he was apprehended on the night of January 16, 1979.      The Trial Court relying on the evidence of P.W.25, P.W. 26  and P.W.27 came to the conclusion that the accused  used to maltreat and assault his wife because she refused to  get money  for  him from her mother, and that  the  evidence  of P.W.17,  P.W.26 and P.W.27 proved the circumstance that  the accused  manipulated to send the three witnesses out of  the house  on the pretext of buying clothes and  vegetable  from the  market.   Accordingly, the Trial  Court  convicted  the accused   under  Section  302  IPC  and  sentenced  him   to imprisonment for life, but acquitted him of the charge under Section 380 IPC.      The  accused appealed to the High Court and a  Division Bench  set aside the order of conviction, and acquitted  the accused.  It held that there was variance in the evidence of P.W.26 and P.W. 27, and found contradiction in the statement of  P.W.  26 and the F.I.R. Ex. P1, and concluded  that  the prosecution  has  not succeeded beyond reasonable  doubt  to establish  that the accused had managed to send  P.W.26  and P.W.27 out of the house at that point of time.      Allowing  the State’s appeal, reversing the High  Court judgment and restoring the Trial Court judgment, this Court,      HELD  :  1. The High Court fell into  patent  error  in rejecting the                                                        581 testimony  of  P.W.26  and P.W.27.  Even  if  there  is  any contradiction  on a non-material point that is no ground  to reject  the  whole of the testimony of the  witnesses.   The High Court did not make any effort to read the statements of P.W.26 and P.W.27 and appreciate the same. [585E]      2.  According  to  the High Court  the  discrepancy  in regard  to  the number of ‘Heralikayis’  was  sufficient  to reject  the testimony of P.W.17.  The material part  of  the testimony of P.W.17 is that he was sent to the market to buy ‘Heralikayis’  whether they were two, three or six  was  not material.   In any case the discrepancy is so minor that  it cannot   render   the  testimony  of  P.W.17   unworthy   of acceptance.   The High Court was therefore not justified  in rejecting the evidence of P.W.17 on a flimsy ground. [585F]      3.  The  trial  court relying  upon  the  testimony  of P.W.14,  P.W.20 and P.W.22 came to the conclusion  that  the circumstance  relied upon by the prosecution to  the  effect that  the  respondent was going towards  bus  stand  holding suit-case in his hand at about 6.30 p.m. on January 12, 1979 was  proved.   There  is no discussion,  not  even  mention. [585H]      4.   The  High  Court  has  also  not   discussed   the

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circumstance  that  the respondent was absconding  till  the night  of  January 16, 1979 when he was  arrested  which  is surely  a  link in the chain of circumstances  to  establish that  the  respondent  alone had committed  the  offence  of murder of his wife.                                                       [586B]      5. The High Court judgment is patently perverse and  is set  aside.   The judgment of the trial court  is  restored. The  respondent  is  convicted under  Section  302  IPC  and sentenced to undergo rigorous imprisonment for life. [586C]

JUDGMENT:      CRIMINAL  APPELLATE  JURISDICTION  :  Criminal   Appeal No.373 of 1981.      From  the  Judgment  and Order  dated  12.6.80  of  the Karnataka High Court in Crl. Appeal No. 346 of 1979.      M. Veerappa for the Appellant.      Devendra Singh for the Respondent.      The Judgment of the Court was delivered by                                                        582      KULDIP SINGH, J. Lakshmanaiah was tried for the  murder of his wife Nagarathnamma and also for stealing his  mother- in-law’s  property.   He was convicted by  the  trial  court under  Section  302, India Penal Code and was  sentenced  to imprisonment  for life.  He was, however, acquitted  of  the charge  under  Section  380,  IPC.   The  appeal  filed   by Lakshmanaiah  against his conviction under Section 302,  IPC was  allowed  by the High Court and he  was  acquitted.   No appeal  against  his acquittal under section  380,  IPC  was filed before the High Court.  This appeal is by the State of Karnataka against the judgment of acquittal rendered by  the High court.      Lakshmanaiah along with his wife and two children  aged two  years  and eight months was residing  in  Mandya  City. Gowramma, his mother-in-law, alongwith her younger  daughter Leelavathi,  was also residing in the same city at  a  short distance  from  his  house.  The prosecution  case  is  that Lakshmanaiah  used  to demand money from  his  mother-in-law through his wife.  He had executed two promissory notes  for Rs.  2,000  and  Rs. 3,000 in favour  of  his  mother-in-law towards  the  money  he had borrowed from  her.   He  became disgruntled  when his mother-in-law refused to  comply  with his  demands  and his wife declined to help him  in  getting more  money  from her mother.  As a consequence  he  started abusing, ill- treating and assaulting his wife.  Few  months before   the  occurrence  Gowramma  brought   her   daughter Nagarathnamma  and  her children to her house.   After  some time  Lakshmanaiah also came to reside at the house  of  his mother-in-law.   It  is  alleged that on  January  12,  1979 Mahadev, a close relation of Gowramma came to their house at about 4 p.m.  On that day apart from Lakshmanaiah, his  wife and  two  children,  there  were  Gowramma,  Leelavathi  and Mahadev present in the house of Gowramma.  According to  the prosecution story Lakshmanaiah gave Rs.30 to his wife  which she  further gave to her mother for buying clothes  for  the children  so  that they could wear the same on  the  ensuing "Sankranti"  festival.  Gowramma and Leelavathi went to  the market   to  buy  clothes  for  the  children.    Thereafter Lakshmanaiah  gave  Rs.  2 to Mahadev and sent  him  to  the market   to   bring  "Heralikayi"  a  sort   of   vegetable. Thereafter Lakshmanaiah was left alone in the house with his wife  and two small children.  When Gowramma and  Leelavathi came backfrom the market they found the two children  crying

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outside the house.  On entering the house they did not  find anybody inside.  On further search they found the  dead-body of  Nagarathnamma  in the bathroom, her head ducked  in  the bucket  full  of water.  After some time Mahadev  also  came back   to   the  house  and  learnt  about  the   death   of Nagarathnamma.  Gowramma came                                                        583 to know from the neighbours that her son-in-law went out  of the  house  some time back.  Case was  registered  with  the police.    Lakshmanaiah  was  found  absconding.   He   was, however, arrested on January 16, 1979.      There  is  no direct evidence against  the  respondent. The prosecution relied on the following circumstances:      1. Motive as disclosed by Kalaraju PW 24,  Puttamadappa PW 25, Gowramma PW26 and Leelavathi PW 27.      2. Presence of deceased and the respondent in the house of  PW 26 on the evening of January 12, 1979 as  deposed  by Mahadev PW 17, PW 26 and PW 27.      3. After sending PW17, PW26 and PW27 from the house for purchasing  clothes  and "Heralikayi",  the  respondent  was alone with the deceased along with two small children.      4.  The respondent was going towards  bus-stop  holding his suit-case in his hand on the evening of January 12, 1979 as  seen by Subbaiah PW 14 and corroborated by Chikkaiah  PW 20 and Boraiah PW 22.      5.  The conduct of the accused in absconding  from  the evening  of January 12, 1979 till he was apprehended on  the night of January 16, 1979.      On the question of motive PW  25, PW 26 and PW 27  have deposed  that the respondent was demanding money from PW  26 through his wife and in that connection he used to  maltreat her.   PW  24 also corroborated their  version.   The  trial court  rightly  did  not  attach  much  importance  to   the testimony  of  PW 24 but relying on the  evidence  of  other three witnesses, came to the conclusion that the  respondent used to maltreat and assault his wife because she refused to get  money for him from her mother.  The High Court has  not adverted to this aspect of the prosecution case.      The   circumstances  regarding  the  presence  of   the respondent in the house of PW 26 and the act of his  sending PW  17, PW 26 and  PW 27 to the market for making  purchases have been sought to be proved by the testimony of PW 17,  PW 26 and PW 27.  Gowramma PW 26 has consistently deposed  that the  respondent  was living in her house and on January  12, 1979 he gave Rs. 30 to her and asked her to purchase clothes for the                                                        584 children  to be worn on the festival of  "Sankranthi".   She further  deposed  that  she left the house  along  with  her daughter  PW 27. PW 17 Mahadev has deposed that he  went  to the  market  to  buy  "Heralikayi"  at  the  asking  of  the respondent.   The statements of these three  witnesses  have been  relied  upon  by  the  trial  court  in  proving   the circumstance that the respondent was alone in the house with his  wife and two children.  The trial court further  relied upon   the  evidence  of  these  witnesses  to   prove   the circumstance  that  the respondent manipulated to  send  the three  witnesses out of the house on the pretext  of  buying clothes  and  "Heralikayi"  from the  market.   A  Bench  of Karnataka  High  Court consisting of M.S. Nesargi  and  D.R. Vithal  Rao, JJ. disbelieved the testimony of PWs 26 and  27 on the following reasoning:          "In  the first instance, it has to be seen  whether          the accused had managed to send away PWs 26 and  27          to  purchase clothes for the children.  It  is  the

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        say  of PWs 26 and 27 that the accused gave Rs.  30          in  the  hands  of the deceased and  asked  her  to          request  PW  26 to go to the  market  and  purchase          clothes for the children.  What is stated in Ex.P.1          in  this  behalf  is that  the  deceased  told  her          children to observe Sankranti festival and that the          accused  had  given  money in her  hands  for  that          purpose and requested her that she and PW 27 should          go  and purchase clothes. PW 26 told  the  deceased          that  she should go and bring clothes but she  said          that she was unable to walk that much distance  and          requested  PW 26 and PW 27 themselves to go.   This          variance leads to an inference that the version  of          PW  26  and PW 27 that the accused  had  asked  the          deceased  to spend PW 26 and PW 27  for  purchasing          clothes  is a latter improvement made by PW 26  and          PW 27.  Therefore, we hold that the prosecution has          not succeeded beyond reasonable doubt to  establish          that  the accused had managed to send PW 26 and  PW          27 out of the house at that point of time".      Since  the  High Court has found contradiction  in  the statement of PW 26 and the FIR Exhibit-P.1 (got recorded  by Gowramma) it would be useful to reproduce the relevant  part of the FIR:          "My daughter gave me 30 rupees and told me that the          son-in-law  had  asked to buy new clothes  for  the          children  and requested me to go and buy  them.   I          asked her to go and buy the                                                        585          clothes herself but she asked me to go.  I went  to          the cloth shop along with my younger daughter."      The  relevant  part  of the statement of PW  26  is  as under:          "Then my son-in-law gave Rs. 30 to my daughter  and          asked her to get cloth for the children through me.          I told my daughter that I find it difficult to make          purchases  and  it was better for them  to  go  and          purchase  the cloth.  In turn my daughter told  me.          "I cannot go there please go." I agreed and took my          younger  daughter  Leelavathi along with me to  the          cloth  shop.   We  returned home  at  6.30  in  the          evening after buying the cloth."      Reading  the  two  quotes  above we  do  not  find  any contradiction.  We are at a loss to understand how the  High Court has found contradiction in the statement of PW 26  and the  FIR  when none exists.  There has been  total  lack  of application of mind on the part of the learned Judges of the High  Court.  Even if there is any contradiction  on  a  non material point that is no ground to reject the whole of  the testimony of the witnesses.  The High Court did not make any effort  to  read  the statements of PW 26  and   PW  27  and appreciate the same.  We are of the view that the High Court fell  into patent error in rejecting the testimony of PW  26 and  PW 27.  The High Court rejected the testimony of PW  17 on  the ground that the Investigating  Officer PW 31  stated that Mahadev PW 17 had six "Heralikayis" in his hand at  the time  of  recording of his statement, whereas PW  29  stated that after the occurrence when he went to the house of PW 26 he saw two "Heralikayis" in the hands of PW 17.   Ultimately three "Heralikayis" were produced in the court.  Accordingly to the High Court the discrepancy in regard to the number of "Heralikayis"  is sufficient to reject the testimony  of  PW 17.  We do not agree with the High Court.  The material part of the testimony of PW 17 is that he was sent to the  market to  buy "Heralikayis".  Whether the "Heralikayis" were  two,

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three or six was not material.  In any case the  discrepancy is  so  minor that it cannot render the testimony of  PW  17 unworthy of acceptance.  The High Court was not justified in rejecting the evidence of PW 17 on a flimsy ground.      The trial court relying upon the testimony of PW 14, PW 20  and PW 22 came to the conclusion that  the  circumstance relied  upon  by  the prosecution to  the  effect  that  the respondent was going towards bus-stand holding suit-case  in his hand at about 6.30 p.m. on January 12, 1979 was                                                        586 proved.   There is no discussion, not even mention, of  this circumstance by the High Court,.  According to us, the trial court  rightly relied upon this circumstance  in  connecting the respondent with the crime.  The High Court has also  not discussed   the   circumstance  that  the   respondent   was absconding  till the night of January 16, 1979 when  he  was arrested   which   is  surely  a  link  in  the   chain   of circumstances  to  establish that the respondent  alone  had committed the offence of murder of his wife.  All the  above discussed  circumstances  would prove  that  the  respondent alone had killed his wife Nagarathnamma and the  prosecution brought  home the offence against the respondent beyond  any shadow of doubt.      We  are  of the view that the High  Court  judgment  is patently  perverse and has to be set aside.  We,  therefore, allow  the appeal, reverse the High Court judgment  and  set aside  the  acquittal of the respondent under  Section  302, Indian  Penal  Code.  We restore the judgment of  the  trial court,  convict him under section 302, IPC and sentence  him to  undergo rigorous imprisonment for life.  We direct  that the respondent Lakshmanaiah be taken into custody  forthwith to undergo the balance sentence of imprisonment for life. N.V.K.                                       Appeal allowed.                                                        587