IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11th DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.713 OF 2012 BETWEEN:
RAMESH @ SANGLI, SON OF LATE NINGAPPA, AGED 29 YEARS, RESIDENT OF SHEEBHENAIAHANAPALYA, DODDERI HOBLI, MADHUGIRI TALUK, TUMKURU DISTRICT. … APPELLANT (BY SRI R.SHASHIDHARA, ADVOCATE) AND:
THE STATE BY BADAVANAHALLI POLICE, MADHUGIRI TALUK, REPRESENTED BY SPP, HIGH COURT OF KARNATAKA, HIGH COURT BUILDING, BENGALURU-560 001. …RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPECIAL PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C. PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT, ORDER AND SENTENCE PASSED ON 02.05.2012 IN S.C.NO.170 OF 2010 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-V, MADHUGIRI- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 201 OF INDIAN PENAL CODE. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR THE LIFE TIME. FURTHER, HE SHALL PAY FINE OF RS.10,000/- AND IF HE FAILED TO MAKE PAYMENT OF FINE, HE SHALL UNDERGO RIGOROUS IMPRISONMENT FOR TWO YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL CODE. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR FIVE YEARS AND SHALL PAY FINE OF RS.5,000/-, IF HE FAILED TO MAKE PAYMENT OF FINE, HE SHALL UNDERGO RIGOROUS IMPRISONMENT FOR ONE YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 OF INDIAN PENAL CODE. BOTH THE SENTENCES SHALL BE SERVED CONCURRENTLY.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, RAVI MALIMATH.,J DELIVERED THE FOLLOWING:
J U D G M E N T The case of the prosecution is that the accused and the deceased were husband and wife. The deceased was her second daughter. She was given in marriage to the accused in 2004. The accused was a drunkard. He would constantly quarrel with his wife and on one such occasion he had assaulted her by causing a bleeding injury to her neck from a blade. The matter was settled by the Panchayath on an apology being furnished by the accused. They have a daughter and son by the said marriage. On 25.02.2010 at about 7.30 a.m., the accused strangulated the neck of the deceased and committed her murder. He wrongly went on intimating that the deceased had committed suicide by hanging from her saree. On coming to know of this, the complainant and her husband came to the village and saw the dead body of their daughter. They found pressed marks on her neck. The husband of the compensation namely, the father of the deceased being under the influence of the accused, gave a complaint to the police stating that the deceased had committed suicide. Based on this complaint, a case was registered under UDR No.5 of 2010. No progress was made thereafter. However, the complainant was sure that her daughter had not committed suicide. The Police did not take her statement. Therefore, she approached her relative and reported the entire facts to him. Along with her relative, she lodged a fresh complaint on 26.03.2010. Thereafter, the investigation was revived.
2. During the course of the investigation, the accused was traced. Thereafter a charge-sheet was filed in C.C.No.744 of 2010 and further the case was committed before the Sessions Court as S.C.No.170 of 2010 against the accused for the offences punishable under Sections 498(A), 302 and 201 of Indian Penal Code (for short ‘IPC’).
3. In order to prove its case, the prosecution in all examined 9 witnesses as PW-1 to PW-9, documents were marked as Exs.P1 to 21 and the material object had been identified as M.O-1. The accused denied the evidence as false and got examined DW-1 to DW-3 in support of his case and pleaded not guilty. By the impugned order, the accused was convicted under Section-302 of IPC and sentenced to serve simple imprisonment for life and to pay a fine of Rs.10,000/- and in default to pay fine, to undergo rigorous imprisonment for two years. He was also convicted for the offence punishable under Section-201 of IPC and sentenced to undergo simple imprisonment for five years and to pay a fine of Rs.5,000/- and in default to pay the penalty, to undergo rigorous imprisonment of one year. The Trial Court also imposed penalty and directed payment of fine by the Investigating Officer under Section-228 of IPC at Rs.1,000/- each for each of the two offences and in default to undergo imprisonment for two years. Aggrieved by the order of conviction, the accused has filed this appeal.
3. The learned counsel for the appellant contends that the Trial Court committed an error in convicting the accused. He states that PWs-1 to PW-5 have turned hostile, PW-6 is hear-say witness, PW-7 is the Investigating Officer, PW-8 is the doctor and PW-9 is the Tahsildar. He submits that the conviction cannot lie purely based on the evidence of the Investigating Officer or the doctor. There is no evidence that the accused was present when the offence was committed. Hence he pleads that the appeal be allowed.
4. The learned Additional State Public Prosecutor disputes the same. He contends that the medical evidence is clear that the death was due to throttling by the accused. Therefore there is nothing to show that the accused is not guilty. Even though PW-1 to PW-5 have turned hostile and not supported the case of the prosecution, the statement of PW-6 is sufficient to sustain the order of conviction. Hence, he submits that the appeal be dismissed.
5. Heard learned counsels and examined the record.
6. The complainant died during investigation. The complainant’s husband, based on whose complaint, UDR No.5 of 2010 was recorded also passed away before commencement of the trial.
7. PW-1 to PW-5 have turned hostile and not supported the case of the prosecution. PW-6 is a relative of the deceased as well as the complainant. He has stated in his evidence that the police did not accept the complaint of the mother of the deceased and by accepting the complaint of the father of the deceased, registered the case as UDR No.5 of 2010. As the victim’s mother narrated the entire incident to PW-6, therefore he along with the complainant went to the police station and lodged a complaint. Thereafter investigation was taken up. The Investigating Officer has not taken appropriate interest and has not properly investigated the matter. Various allegations are made with regard to the insufficiency in the investigation. The facts narrated by him are based on what was intimated to him by the deceased complainant.
8. PW-8 is the doctor who conducted the postmortem on the deceased. He has noticed the injuries sustained by her and stated that the cause of death is not due to throttling, but a case of homicidal death. That there was no ligature mark found on the neck of the deceased but there was an injury on the neck caused due to pressure on the neck, because the wind pipe was injured along with larynx. He also stated that there was no sign of suicide by hanging. He has further stated that the injury found on the neck of the deceased, could not be caused from a saree even if it was used as a noose to commit suicide. He has stated that the delay in giving his opinion was because, he consulted his seniors and thereafter furnished his opinion on the cause of death.
9. The Trial Court accepted the evidence of PW-6 to PW-9 and came to the conclusion that the prosecution has established its case. The Trial Court was of the view that the statement of PW-6 stands corroborated by the medical evidence. Therefore there was sufficient material to hold that the accused is guilty of the offence.
10. On hearing learned counsels and re-examining the material on record, we are of the view that the Trial Court has committed a perversity in accepting the evidence on record. The evidence of PW-8 would clearly indicate that the death was due to throttling. The evidence of the accused that it was a case of suicide was negatived by the doctor’s evidence, who has stated that it is a case of throttling and not of suicide. The Trial Court accepted the evidence and therefore convicted the accused. However, PW-1 to PW-5 have turned hostile. They are the relatives and neighbours of the deceased. It was they who had narrated the incident with regard to the presence of the accused. None of the witnesses have stated as to whether the accused was present when the incident took place. It was for the prosecution to show that throttling was by the accused himself and therefore had to lead evidence towards the same. There is no evidence of any of the witnesses to indicate that the accused was present in the house. Therefore even if the medical evidence is to be accepted, the same does not connect the accused to the offence, until and unless the prosecution is able to show that the throttling was committed by the accused himself. We are unable to accept the reasoning of the Trial Court in convicting the accused. We are of the view that the Trial Court has committed an error in appreciating the evidence on record and convicting the accused. The case of the prosecution is based on medical evidence. However, the same does not connect the accused. That the death was as opined by the doctor, is not challenged. But the prosecution would have to show that the death was caused by the accused. There has to be some evidence to show that the accused himself has committed the crime. None of the witnesses speak about the involvement of the accused.
11. The accused has led-in the evidence of DW-1 to DW-3 who have supported him. There is no cross- examination by the Public Prosecutor with regard to the presence of the accused. When the defence have led in evidence, necessarily the prosecution should have atleast asked with regard to the presence of the accused on the said date and time of the incident. They have not done so. The prosecution have not led any evidence with regard to the presence of the accused and they have not questioned the defence witness with regard to the same. Even though a stray suggestion was not put by prosecution, it was denied.
12. The trial court has committed a perversity in misreading the evidence and material on record. It has failed to connect the crime with the accused. Merely relying on the evidence of the Investigating Officer and the Doctor is not sufficient to bring home the guilt of the accused. The trial court has unfortunately misread the entire evidence and has wrongly applied the same while convicting the accused.
13. Hence we pass the following:
O R D E R (i) Criminal Appeal No.713 of 2012 is allowed.
(ii) The impugned judgment dated 02.05.2012, passed by Fast Track Court-V at Madhugiri, Tumakuru District in S.C.No.170 of 2010 convicting the appellant under Sections 302 and 201 of IPC is set aside.
(iii) The accused, Sri Ramesh @ Sangli, son of late Ningappa, is acquitted of all the offences punishable under Sections 302 and 201 of IPC, charged against him.
(iv) He shall be set at liberty forthwith, if not required in any other case.
(v) Registry is directed to communicate the operative portion of this order to the Jail Authorities, Central Prisons, Parappana Agrahara, Bengaluru.
SD/- SD/-
JUDGE JUDGE Snb/-