IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE B.A.PATIL AND THE HON’BLE MR.JUSTICE R. DEVDAS CRIMINAL APPEAL NO.348/2015 BETWEEN:
Nagaraja P.M.
@ Nagaraja Bhatta S/o Mahadevaiah Aged about 56 years Cook & Coolie R/o Poorigali Village Malavalli Taluk, Mandya District At Present Shukravara Santhe Sakaleshpura Taluk Hassan District-573 134.
(By Sri. Aruna Shyam M., Advocate) AND:
The State of Karnataka through Yasalur Police Station Hassan District Represented by the State Public Prosecutor, High Court Building High Court of Karnataka Bengaluru-560 001.
…Appellant …Respondent (By Sri. Vijay Kumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the order dated 27.10.2014, passed by the II Addl. District and Sessions Judge, Hassan, in S.C.No.29/2013 - convicting the appellant/accused for the offence punishable under Section 302 of Indian Penal Code.
This Criminal Appeal coming on for hearing this day, B.A. Patil, J. delivered the following:-
J U D G M E N T The present appeal has been preferred by the appellant/accused being aggrieved by the judgment of conviction and order of sentence passed by II Additional District and Sessions Judge, Hassan, in S.C.No.29/2013 dated 27.09.2014 and 30.10.2014, where-under the appellant/accused was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.40,000/-, for the offence punishable under Section 302 of IPC, but the trial Court has not ordered any default sentence.
2. We have heard the learned counsel Sri Aruna Shyam M. and Additional SPP Sri.Vijay Kumar Majage.
3. The brief facts of the case as per the prosecution are that the daughter of the deceased filed a complaint alleging that she is residing at Sakleshpur, Kushalnagar, along with her husband, children and her mother. Anusuya got married with accused after the death of her first husband and they were residing together. It is further alleged that the accused and the deceased used to quarrel and accused used to suspect the fidelity of the deceased Anusuya and they used to pacify the said quarrel and even her mother was also fed up with the said quarrel and they visited the house of the appellant and there was a galata and thereafter they went back and the accused used to tell that he is going to teach a lesson to her mother and also he will finish her. In that context, on 28.9.2012 at about 8.00 A.M. when the daughter of the deceased was in her husband’s house, she received a mobile call from one Ravi stating that her mother Anusuya has expired and immediately herself and her husband came to the place and there she saw the dead body of her mother and she also noticed some abrasion over the neck and she also came to know that the husband of the deceased by suspecting the fidelity quarreled with the deceased and he has throttled and also smothered her to death. On the basis of the said complaint a case was registered in Crime No.121/2012 for the offence punishable under Section 302 of the Indian Penal Code.
4. On the basis of the complaint the police investigated the case and a charge sheet was laid as against the accused. The learned Magistrate after taking cognizance and after following the procedure contemplated under Section 207 of the Cr.P.C. as the said case is triable by the Court of Sessions, the case was committed to the Sessions Court. The Sessions Court took the cognizance and secured the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, charge was prepared, read over and explained to the accused. Accused pleaded not guilty, he claims to be tried and as such trial was fixed.
5. In order to prove the case of the prosecution, prosecution got examined 18 witnesses and got marked 23 documents and also got marked MOs.1 to 6. Thereafter, the statement of the accused was recorded by putting incriminating material as against him under Section 313 of Cr.P.C. Accused denied the said questions. Accused has not led any defence evidence and has not got marked any documents. After hearing the learned counsels appearing for the parties, the impugned judgment of conviction and order of sentence came to be passed.
6. It is the submission of the learned counsel for the appellant that though the prosecution has got examined 18 witnesses, no independent witnesses have supported the case of the prosecution. Except the official witnesses, the other evidence is not pointing out the presence of the accused at the place of incident. He further submitted that the trial Court not looking into the provisions of law and when the witnesses have turned hostile, even then by relying upon such evidence has wrongly convicted the appellant/accused. He further submitted that the prosecution evidence clearly goes to show that the character of the deceased was not good and one Shivanna also used to visit the house. In that context there was a quarrel in the family. Under such circumstances, there is every possibility of said Shivanna causing the death of the deceased cannot be over ruled. He further submitted that the doctor who conducted the post mortem as per Ex.P13 has clearly stated that it is a case of smothering, but the evidence which has been produced clearly goes to show both throttling as well as smothering, but the charge as against the accused is only smothering. The trial Court without considering the said aspect wrongly convicted the appellant/accused. He further submitted that only on the basis of inference, conjunctures and presumptions, the trial Court arrived at a wrong conclusion without proper appreciation of the evidence. He further submitted that the presence of the accused cannot be gathered on inferences and accused cannot be convicted under the said circumstances. On these grounds, he prayed to allow the appeal and set aside the impugned judgment of conviction and order of sentence.
7. Per contra, the learned Additional SPP vehemently argued and submitted that the evidence of PW2 the son of the accused and the deceased clearly goes to show that the accused, deceased and PW2 were residing together in the said house and the said offence has taken place in the house and it is the house murder, then under such circumstances the presence of the accused can be gathered and it is the accused who has to explain under what circumstances the homicidal death of deceased has taken place in the house. He further submitted that PW9 the nurse who came and examined the dead body of the deceased has clearly deposed that it is the accused who brought her at about 8.00 A.M. and the said circumstances itself clearly goes to show that it is the accused who was present in the house at the time of the alleged incident. He further submitted that when the presence of the accused has been established and there is no evidence produced by the defence to show that the accused was not present at the time of alleged incident, then under such circumstances, by inferring that the accused present at the place of incident and in the absence of any explanation by the accused, the Court can convict the accused. On these grounds, he prayed to dismiss the appeal as devoid of merits.
8. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and we have also gone through the lower court records and the evidence. On re-appreciation of the evidence we noticed the following facts.
9. PW1 is the daughter of the deceased and she has filed a complaint, but she has not supported the case of the prosecution. PW2 is the star witness who was present at the place of incident and he is an eyewitness to the alleged incident, but he has also not supported the case of the prosecution and he has been treated as hostile. PW3 is an inquest mahazar pancha to Ex.P5, where-under the pillow MO.1 was recovered from the house of the accused. PW4 is the husband of PW1 and he is also the punch witness to Ex.P8 wherein the recovery of the clothes of the deceased was done as per MOs.2 to 6. PW5 is neighbourer and he is also co-worker who used to advice whenever the quarrel took place between the deceased and the accused and he is also the punch witness to Ex.P5, recovery of MO.1. PW6 is the recovery mahazar pancha to Ex.P5 wherein M.O.1 has been recovered. PW7 is neighbourer, she has denied the galata between the accused and the deceased and she also denied the suggestion about accused suspecting the fidelity of the deceased. PWs.1 to 7 have not supported the case of the prosecution and they have been treated as hostile.
Even during the course of cross-examination by the learned Public Prosecutor, nothing has been elicited so as to substantiate the case of the prosecution. PW9 is the nurse who went to the house at the request of the accused and after verifying she told that already the deceased has breathed her last. She has also not supported the case of the prosecution. PW10 is the Assistant Engineer who has drawn the sketch as per Ex.P16. PW11 is the Panchayath Development Officer, he has issued Ex.P17- the tax paid receipt. PW12 is the neighbourer, he denied the suggestion that he heard the galata and pacified the quarrel, he has not supported the case of the prosecution. PW13 is the Police Constable who watch the body of the deceased and brought the articles and produced and the same were seized as per Ex.P8. PW14 is the Head Constable, he carried the complaint and got registered the case and he also carried the FIR to the Court. PW15 is the ASI who brought the complaint and registered the case and issued the FIR. PW16 is the Junior Engineer, he has spoken with regard to supply of Electricity at the time of the alleged incident. PW17 is the Police Sub- Inspector who received the information and went to the spot and there he received the complaint Ex.P1 and he sent the complaint to got it registered through PW14. He has also an Officer who partly investigated the case. PW18 is the CPI who investigated the case and filed the charge sheet as against the accused.
10. It is not in dispute that the independent witnesses who have been examined by the prosecution have not supported the case of the prosecution and they have been treated as hostile and in this behalf the evidence of PWs.1, 2, 3, 4, 5, 6, 7, 9 and 12 is not going to help the case of the prosecution in any manner. As such their evidence has been discarded.
11. The prosecution in order to establish the fact that the deceased Anusuya died a homicidal death, has got examined PW8 Dr.H.G.Nagaraj. In his evidence he has deposed that he was working as Medical Officer and as per the request of the police he has conducted the autopsy over the dead body of the deceased Anusuya. He further deposed that when he saw the body for the first time he has seen an abrasion near the neck and a contusion near the neck and there were some injuries near the left ear and thyroid bone was also fractured and he has issued the post mortem report as per Ex.P13. He has opined that the death is due to mechanical asphyxia as a result of throttling. During the course of cross- examination of this witness it has been elicited that if a person is strangulated by throttling, then under such circumstances, the colour of the face is also going to be changed and eyeballs will come out, but in the instant case the colour of the face was not changed and the eyeballs have not come out. Except that nothing has been elicited from the mouth of this witness. Though an independent witnesses have not supported the case of the prosecution, it is the contention of the learned Addl. SPP that the presence of the accused has been proved and when once the presence has been proved and the death has taken place in the house of the accused, then under such circumstances it is the accused who has to explain as to how the deceased died a homicidal death.
12. It is true that whenever a house murder has taken place and if the presence of the accused is proved by the prosecution, then under such circumstances, heavy burden lies upon the accused to show that under what circumstances the deceased died in the said house. But we have carefully and cautiously gone through the evidence of the entire prosecution witnesses. Nowhere it is specifically elicited from the mouth of any of the witnesses with regard to presence of the accused at the relevant time of the alleged incident. Though a star witness PW2 the son of the deceased has deposed before the Court that there used to be galata between the accused and the deceased, in his evidence he has also deposed that one Shivanna used to come to the house, so it was the main cause for the galata between the deceased and the accused, and the accused used to suspect the fidelity of the deceased only because of the visit of the said Shivanna. Even the records also indicates the fact that on the date of the incident the said Shivanna has visited the house and even some smoked beedi were also found in the house. Under such circumstances, even the said Shivanna visited the house on the date of incident cannot be over ruled. Only on the basis of inference that the husband, deceased and PW2 were residing in the said house, only on the basis of the inference it cannot be gathered that the accused was present at the place of incident at that time and on the basis of that the Court cannot hold that it is the accused, accused alone is responsible for the said death of the deceased. When two views are possible from the said evidence which has been made available, then under such circumstances the one best view which is beneficial to the accused has to be given and the benefit of doubt has to be given to the accused, when all independent witnesses have not supported the case of the prosecution and even there is no material specifically produced by the prosecution to show the presence of the accused at the relevant time of the incident, then under such circumstances the benefit of doubt goes to the accused and in that light, the appellant has made out a case that the prosecution has not proved the guilt of the accused beyond all reasonable doubt.
13. We have carefully and cautiously gone through the judgment of the trial Court and the trial Court without taking into consideration the proper proposition of law and evidence, only on the basis of the hostile witnesses evidence has wrongly convicted the accused without application of mind and proper appreciation in this behalf.
14. Looking from the said judgment and order of sentence, the trial Court without looking into the above said aspects has wrongly convicted the accused and as such it requires interference at the hands of this Court.
15. Taking into consideration the above said facts and circumstances we pass the following order:
Accordingly, the appeal is allowed. The judgment of conviction and order of sentence passed by the II Additional District and Sessions Judge, Hassan, in S.C.No.29/2013 dated 27.09.2014 and 30.10.2014 is set aside. The appellant-accused is acquitted of the charges levelled against him for the offence under Section 302 of the Indian Penal Code.
The concerned prison authorities are hereby directed to release the appellant-accused forthwith, if he is not required in any other case.
The Registry is directed to communicate the operative portion of this judgment to the concerned prison authorities.
Sd/- JUDGE Sd/- JUDGE *AP/-