IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE B. A. PATIL CRL.A. NO.1138/2015 (C) BETWEEN MR. SOMANNA S/O SHAMBAIAH AGED ABOUT 38 YEARS HONNAMMANAKATTE VILLAGE H. D. KOTE TALUK – 571 114 MYSURU DISTRICT ... APPELLANT (BY SMT. BUDRANNISA, ADVOCATE FOR SRI. K. SHASHIKANTA PRASAD, ADVOCATE) AND THE STATE OF KARNATAKA REP. BY SPP HIGH COURT OF KARNATAKA BENGALURU – 560 001 ... RESPONDENT (BY SRI. K. SHASHIKANTA PRASAD, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 28.02.2014 PASSED BY THE I ADDL. S.J., MYSURU IN S.C.NO.97/2012 – CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302, 201 READ WITH 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT The appellants are the accused persons in SC No.97/2012 on the file of the Additional Sessions Judge, Mysuru (for short, ‘trial Court’). The learned Sessions Judge has convicted both the appellants for the offences punishable under Sections 302 and 201 of IPC sentencing them to undergo imprisonment for life and to pay fine of Rs.2,000/- with default sentence for the offence punishable under Section 302 of IPC and as well as sentenced them to undergo imprisonment for three years and to pay Rs.500/- with default sentence for the offence under Section 201 of IPC.
2. The brief factual matrix of the case as could be seen from the records are that, Accused No.1-Jayamma and the deceased by name Thammaiah are husband and wife. Both of them were residing at S.Belathuru Village in H.D. Kote Taluk. Accused No.2 -Somanna is also a close relative of the deceased Thammaiah. He often visiting the house of the deceased and Accused No.1. In that context, it is alleged that they have developed some intimacy with each other and this came to the knowledge of the deceased Thammaiah. In this context quarrels were taking place between Accused No.1 and the deceased often in their house.
In the above context, it is the further case of the prosecution that, on the intercepting night between 25.10.2011 and 26.10.2011 Accused No.2 came to the house of the deceased and both the deceased and Accused No.2 have consumed alcohol and they slept in the house of the deceased Thammaiah.
3. It is the further case of the prosecution that, Accused No.1 and her son PW.5-Lingaraju had been to the house of PW.9-Banaiah and PW.10- Parvathamma who were the husband and wife and who were the close relatives of the deceased Thammaiah for the purpose of watching TV and in fact they slept there itself. It is the further case of the prosecution that in fact after PW.5-Lingaraju slept, Accused No.1 came back to her house and thereafter Accused Nos.1 & 2 have planned to do away with the life of the deceased when the deceased was sleeping and accordingly, they have squeezed the testicles of the deceased and due to which the testicles of the deceased were congested and thereafter, due to asphyxia he died in the said house. On the next day, the said information was gathered by PW.1-Veerabhadra, who is also another son of the deceased Thammaiah and he came to know about the death of the deceased and also involvement of Accused Nos. 1 & 2 in removing the deceased from the universe. Therefore, on suspicion he lodged a complaint as per Ex.P1, on the basis of which, the police have investigated the matter and laid the charge sheet against the accused persons (appellants herein) for the above said offences.
4. We have heard the arguments of the learned counsel for the appellants and the learned Addl. SPP. We have carefully re-evaluated the entire oral and documentary evidence put forth by the prosecution before the trial Court. We have also carefully examined the judgment of the trial Court.
5. The Learned counsel for the appellants/accused has taken us through the evidence of the prosecution and submitted that, the entire case of the prosecution revolves around the evidence of PW.5, PW.9 and PW.10, who have only implicated Accused No.2 to the crime stating that, Accused No.2 was very much present in the house of the deceased Thammaiah on the night of 25.10.2011 and Accused No.1 also went to her house (house where the deceased was sleeping) in the midnight, hence, both of the Accused are not responsible for the death of the deceased, as the dead body of the deceased found on the next day morning ie., on 26.10.2011. All these witnesses are very much interested and they want to exclude Accused No.1 from the liability and only they want to implicate Accused No.2. Even their evidence is very shaky sofar as the presence of Accused No.2 in the house of the deceased on that particular day. If other material evidences on record are considered, they are not corroborative with the evidence of these three important witnesses. Learned counsel has also submitted that, the death of the deceased is extraneous and it does not connect the accused with the death of the deceased. The prosecution has not established the homicidal death of the deceased beyond reasonable doubt. Absolutely no motive factor is established though the prosecution has made an attempt to show the illicit intimacy between Accused Nos. 1 & 2. The kith and kin of the deceased have also not fully supported the motive factor. Therefore, without considering inconsistency in the evidence of the prosecution witnesses and contradictions and omissions in the evidence of the material witnesses and also even without there being sufficient evidence, the trial Court has mainly relied upon the non-explanation of the accused, holding that, there was absolutely no explanation by Accused No.1, the trial Court has erroneously convicted the accused persons for the above said offences.
6. Per contra, the learned Additional SPP has briefly summarized the case before the court and submitted that, if the court believes the evidence of PW.5, 9 and 10, and the circumstances that, Accused Nos.1 & 2 found in the house of the deceased on the night of relevant date and time and the dead body of the deceased found on the next day in the said house then there is no ground to interfere with the judgment. Therefore, presence of Accused Nos. 1 & 2 in the house of the deceased on the night hours on the date of incident in question is the strong circumstance, which shows that, the accused must be the perpetrators of the crime and no one else could have done that act. In the above circumstances, the learned Addl. SPP has submitted that, the trial Court considering the material available before it, has recorded the judgment of conviction and order of sentence. Therefore, the impugned judgment of conviction and order of sentence does not call for any interference at the hands of this court.
7. In the wake of the above submissions now we would like to have the cursory look at what the witnesses have deposed before the court before the appreciation.
7.1 PW.1-Veerabhadra, is the son of the deceased Thammaiah and Accused No.1. He deposes that, he only received information about the presence of Accused Nos. 1 & 2 in the house of the deceased Thammaiah and the dead body of his father was found on the next day. Therefore, he lodged a report (Ex.P1), on the basis of which the Police have seized MOs-1 to 4, which are the clothes of the deceased and also MOs. 5 to 8. He also to some extent turned hostile with reference to the illegal intimacy between his mother and Accused No.2. He further deposed that, on that particular day, he enquired his mother about the incident, but she did not disclose anything. But, he states that, he came to know about the incident from other witnesses. He never stated that, he has received any information from PW.5-Ningaraju, who is the proper person to say as to what exactly happened on that particular day.
7.2 PW.2-Krishnaiah is the neighbor of the deceased. He is also a circumstantial evidence, who has only seen the dead body and suspected that, the death of the deceased, as murder. He is a hear-say witness sofar as the said suspicion is concerned and also about the incident. He is also a witnesses to Ex.P4 (inquest mahazar). In the course of cross- examination, the death of the deceased was not disputed on the other hand it was suggested to him that, it may be a suicidal death. The above said suggestion was denied by this witness. Ex.P4 is the inquest report which shows that the police have conducted the inquest and they found some injury to the testicles of the deceased.
7.2(a) We found that, through out the evidence of the said prosecution witnesses, absolutely there is no denial with regard to the death of the deceased. But, the accused persons’ defence is, they were not responsible for the death of the deceased Thammaiah.
7.3 PW.3-Prabhakara is the close relative and in fact he has also a neighbourer and his house is situated at a distance of 60 to 70 feet from the house of the deceased. He is also a hear-say witness about the incident and to him also alterative motive was suggested, but he denied the same. He also stated that, he saw the dead body of the deceased who sustained some injury to the testicles and when he enquired Accused No.1, she told to him that Accused No.2 and the deceased were only present in the house on that particular night. This shows that, PWs. 1 & 2 want to exculpate Accused No.1 and to only implicate Accused No.2 to the crime.
7.4 PW.4-Shambhamma is the daughter of the deceased. She has deposed that, there were quarrels between Accused No.1 and the deceased often. Except that, she has not stated anything and she has not supported the case of the prosecution sofar as the motive factor is concerned. Therefore, the evidence of this witness also indicate that, they want to save Accused No.1, as far as possible.
7.5 PW.5- Ningaraju is the star witness and he has deposed about the presence of Accused No.2 in the house on that day, but he also turned hostile so far as the motive factor is concerned. He also excluded the presence of Accused No.1 at the relevant point of time in the house and only implicated Accused No.2. We would discuss with regard to this evidence little latter as to whether his evidence is trust worthy for acceptance.
7.6 PW.6-Sudeepa is a child witness. He is the son of the deceased and Accused No.1 and he is also a hear-say witness. In fact, he has not supported the case of the prosecution to any extent, even for the motive or any information with reference to Accused Nos. 1 & 2 with regard to the death of the deceased.
7.7 PW.7-Raju is a neighbour who was examined to establish the motive factor. According to this witness, he went to the spot next day, seen the injuries and he only suspected Accused Nos.1 & 2. He has not supported the case of the prosecution.
7.8 PW.8-Eraiah has similarly deposed as that of PW.7, with reference to the motive factor. But he also turned Hostile to the case of the prosecution.
7.9 PW.9-Banaiah and PW.10-Parvathamma are the material witnesses. They have also not fully supported the case of the prosecution with regard to the motive factor. But they have specifically stated about the conduct of Accused No.1 and going back to her house in the late night from their house. We would discuss the evidence of this witness also with reference to the evidence of PW.5- Ningaraju, little later.
7.10 PW.11-Dr. Dinakar M.B. has conducted post-mortem examination on the dead body of the deceased Thammaiah and gave his opinion stating that, the death of the deceased was due to vaso- vagal shock, as a result of injury to testicles, and issued post-mortem report as per Ex.P16 and also gave his opinion as per Ex.P18 that, the said death could be caused by means of causing injury to the testicles or by means of squeezing of testicles.
7.11 PW.12-Radha S. is the Scientific Officer, who examined MOs. 1 to 8 and gave her opinion as per Ex.P19. However, there is absolutely no connection to the accused persons so far as these articles are concerned, which are all belongings of the deceased and as well as the articles found surrounding the dead body. There is also absolutely no incriminating materials against the Accused/appellant.
7.12 PW.13-Ningachari, is a Panchayath Development Officer, who furnished the Katha Register Extract of the house of the deceased as per Ex.P.21.
7.13 PW.14-Kalachari is the photographer.
This witness was not cross examined by the defence counsel, as absolutely no incriminating material was found from him, against the accused.
7.14 PW.15-Nataraju G. is another witness, who contradicted the evidence of the Doctor-PW.11. In fact, he has stated that he has been working as a professor in a Medical College at Mysuru and he gave opinion as per Ex.P17. He was a Professor of Pathology. He examined the testicles which were removed at the time of post-mortem examination and sent to this witness for examination. He has specifically stated that, the testicles of the deceased were normal and subsequently he specifically stated at Ex.P17 that, multiple sections studied from both the testis shows Seminiferous tubules showing varying stages of sperminogenesis and sperminogenesis with focal autolytic changes and occasional vessels showing mild vascular congestion. On the other hand, his opinion was that, the testicles of the deceased were normal.
7.14(a) Here, we find two different opinions from two doctors. One doctor says the testicles were normal and congestion may occur at the time of removing the testicles for examination and other doctor says that the death was due to vaso-vagal shock as a result of injury to testicles, exaggerated by hypoxia. The prosecution has not established beyond reasonable doubt, whether the death of the deceased was homicidal in nature or not. Therefore, as rightly contended by the learned counsel that, the death of the deceased is a mystery not cracked as to how the death has been occurred, when one doctor says that the testicles were normal in nature. Therefore, the doubt in the said regard is not fully and clearly clarified by the prosecution.
7.15 PW.16-Smt. Shobha M. is a Woman Police Constable-No.41, who has apprehended Accused Nos.
1 & 2 on 27.10.2011. There is absolutely no cross- examination to this witness sofar as this aspect is concerned, therefore, it is undisputed.
7.16 PW.17-T.Govinda is the Head Constable No.122, who registered a case in Crime No.162/2011 on the basis of Ex.P1 lodged by PW.1 and dispatched the FIR (Ex.P26) to the jurisdictional Court.
7.17 PW.18-M. Nanjappa is the PSI, who after registration of the case, taken over the investigation and inspected the spot, drew up spot mahazar etc.
7.18 PW.19-Venkatesh and PW.20-Venkatesha @ Dasaiah are the material witnesses. They were examined to prove that, they have seen Accused No.2 on that particular day. But, both of them have turned hostile to the prosecution with reference to the last seen of the accused No.2 (Appellant) in the village and found in the house of the deceased Thammaiah.
7.19 PW.21-C. Mallik and PW.22-H.Govindaraju are the Investigating Officers, who have investigated the case and laid the charge sheet against the accused.
8. On over all analysis of the entire oral and documentary evidence on record, we noticed that the evidence of three witnesses in this case play a dominant role. As we have already narrated, the death of the deceased is mysterious and that mystery has not been completely cracked by the prosecution, by explaining the same by means of cogent and convincing evidence, as two doctors have given different opinions with reference to the congestion of the testicles of the deceased. Therefore, when the homicidal death of the deceased is also not properly established, it cannot be said that the prosecution can succeed in the case. Even otherwise, the evidence of PW.5, 9 & 10 are also not trust worthy for acceptance because of the reason that, they want to exculpate Accused No.1 from her liability, and only they want to inculpate Accused No.2 to the aforesaid allegations.
9. Before meticulously adverting to the evidence of PW.5, it is to be noted here that, these three witnesses and other witnesses, whose evidence we have already examined, are all closely related to the deceased and Accused No.1. Of course the evidence of related witnesses cannot be discarded only on the ground of their relationship, but, if their evidence is tainted with relationship while adducing the evidence before the court, then their evidence has to be very carefully scrutinized before accepting their evidence for the purpose of recording conviction, particularly in this case, against Accused No.2. In this background, we would like to discuss the evidence of these three witnesses.
10. PW-5 Ningaraju, son of the accused No.1 has deposed before the court that, himself and his father and mother were all residing at N.Belthur village and accused No.2 was often visiting their house, whenever he failed to get bus, he used to sleep in their house. On the day of the incident also, the accused came to their house, the deceased Thammaiah and Accused No.2 both slept in the house of the deceased. However, this witness and Accused No.1 went to the house of PW-9 for watching TV and to sleep there itself. He has in fact turned hostile so far as the motive factor is concerned with reference to illicit intimacy with his mother (accused No.2), he specifically says that, what is the reason for the death of his father. He has categorically stated that, on the next date that was on 26.10.2011 himself and his mother came back to their house and found the dead body of the deceased Thammaiah, his father in the backside portion of the house sustaining injury to his ear etc., The prosecution treated him as hostile and even in the course of cross examination he has not supported with reference to the motive factor. However, he has categorically re-iterated that accused No.1 was present and he slept in the house and he has stated before Police that accused No.1 also went to the house where the deceased and accused No.2 were sleeping. But he denied the other allegations made against accused No.1 and his contradictory portion marked at Ex.P-8 and P-9. It is suggested that in order to save his mother, he is deposing falsehood before this court. In fact he has accepted the same in the course of cross examination by the learned Public Prosecutor.
10.1 In the course of cross-examination of PW.5 by the accused, it is suggested that accused No.2 was not at all came to their house on that particular date and in fact because of the quarrel between accused No.1 and the deceased and the deceased being addicted to alcohol, these two witnesses were sleeping in the house of PW-9 and the said suggestion has been admitted. Therefore, from the evidence of this witness, the relationship between the witness and accused No.1 is glaringly apparent on the face of the record that, before Police, he has implicated accused Nos.1 & 2, but he want to exclude his mother accused No.1 from the crime. Therefore, he has stated that himself and his mother both were slept in the house of PW-9 and came to the house on the next day morning to show that accused No.1 had not been to the house of the deceased at that time where accused No.2 and deceased were sleeping according to him. In this background the evidence of the other witnesses also play a dominant role.
11. PW.9- Banaiah is no other than the relative of this witness and they stated that, on that particular day of the incident, PWs.5 & 1 both had been to the house of this witness for the purpose of watching TV. Thereafter, they slept there itself and after PW-5 slept at about 10.30 p.m., in the night, Accused No.1 went back to her house for the purpose of sleeping with the deceased. He has not fully supported the case of the prosecution. In the examination in chief, he in fact has not at all stated that accused No.1 went back to her house on that day and he also turned hostile sofar as the motive factor is concerned. He has further stated that, he had not seen accused No.2 coming to the house of the deceased at any point of time. But in the course of cross-examination by learned public prosecutor, he has stated that, accused no.1 went back to her house and he has stated before Police in such manner, but he says that deceased Thammanna himself came to the house of these witnesses and took accused No.1 along with him. Both the witnesses have deposed in the same manner. There is lot of difference between the evidence of PW-5 and these witnesses with reference to the inculpation of accused No.1 to the crime. As far as possible they want to exclude accused No.1 from culpability in order to save her because of the relationship. Further, added to the above, it is clear from the evidence of these witnesses, that except the evidence of PW-5, no other material is available to the court to show that, accused No.2 had actually visited Belthuru village and went to the house of the deceased on that particular day as we have already narrated that the two witnesses PWs.19-Venkatesh and PW-20 Venkatesha @ Dasaiah have turned hostile to the prosecution and they have stated that they have not seen the accused in the village on that particular day.
12. The evidence of PW-1 and other witnesses PWs.2 & 3 etc., have also never stated anything about the disclosure of the above said factum that accused No.2 was actually slept in the house of the deceased on that day and the same has been disclosed by PW-5 to any one of them. Even the Investigating Officer has also not narrated anything about this particular factum in the spot Mahazar or in the inquest report. On the other hand, the statement of this witness was recorded after two days of the incident that was on 28.10.2011 no reasons have been stated by the Investigating Officer in his evidence as to why the statement of this witness was not recorded at the earliest point of time if at all this witness was a material witness, who has actually seen the deceased sleeping in the house of the deceased on that particular day and thereafter, himself and mother went to the house of PW-9. This also creates a serious doubt with regard to trustworthiness and veracity of this particular witness. In this context, it is worth to refer a decision of the Hon'ble Apex Court as to how the courts have to consider the evidence of such witnesses.
13. In a case reported in 1981 CRL.LJ. 484 SC between Ram Ashrit and Others Vs. State of Bihar, wherein the Hon'ble Apex Court has said that – “When all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon. In the absence of corroboration to a material extent in all material particulars, it was extremely hazardous to convict the accused persons on the basis of the testimony of these highly interested, inimical and partisan witnesses, particularly when it bristles with improbable versions and material infirmities.”
The above said principle is aptly applicable to the present set of facts and circumstances of the case as all the other witnesses have not implicated accused No.2 and the important independent witnesses examined turned hostile. The evidence of PW-5 also shows that partially he wants to support the case of the prosecution so far as appellant is concerned, but he ed to save his mother. When such being the case, when the relationship has tainted the evidence of the prosecution, the evidence of such witness cannot be made as sole basis for convicting the accused persons.
14. Under the above said facts and circumstances of the case, except the above said circumstance, because no other circumstance is available to the prosecution, it is very difficult to believe the story of the prosecution.
15. In addition to the above, the evidence of PWs.9 & 10, considering the facts and circumstances of the case is also unbelievable when it is the case of the prosecution that accused Nos.1 & 2 have developed intimacy with each other, it came to the knowledge of the deceased. When such was the condition, when accused No.2 and deceased were together in the night hours, can it be expected or believed that the deceased would go to the house of PW-9 to bring back his wife particularly when accused No.2 was there in his house and this is most improbable considering the facts and circumstances of this particular case. Therefore, looking from any angle, the trial Court has not bestowed its attention so far as these discrepancies in the prosecution case itself.
16. We found that the trial Court has also relied upon the false statement given by accused No.1. The judgment of the trial Court discloses that the trial Court has mainly relied upon false explanation offered by the accused as one of the ground for convicting accused No.2. It is observed in the Judgment that, in the evidence of PWs.1 to 10, they have all deposed that the dead body of Thammaiah was found inside his house are being questioned by accused No.1, she revealed to them that the deceased committed suicide by hanging himself with the sari. But, on meticulous examination of all the witnesses, we did not find this particular substantive evidence in the evidence of any of these witnesses. Further, none of the witnesses have stated that on enquiry with accused No.1, accused No.1 has given such a false implication. The trial Court must have persuaded by the 161 statement given by the witnesses and converted the same into substantive evidence and held that accused No.1 has given such false explanation. Therefore, in our opinion, the said observation made by the trial Court is bereft of any substantive evidence before the court.
17. Under the above said circumstances, we find that, the trial Court has committed serious error in convicting accused Nos.1 & 2 for the above said offences. Therefore we are of the opinion that, the prosecution has not proved the case beyond reasonable doubt. Hence, giving benefit of all the above said doubts, contradictions and inconsistencies in the evidence of the prosecution witnesses, we prefer to acquit the accused persons by setting aside the judgment of conviction and sentence passed by the trial Court. Hence, we proceed to pass the following:
ORDER The appeal is allowed. The judgment of conviction and the order of sentence dated 28.2.2014 passed by the I Addl. Sessions Judge, Mysore, in SC No.97/2012, is hereby set aside.
Consequently, the appellant/accused No.2 is hereby acquitted of the charges levelled against him for the offence punishable under Section 302, 201 read with Section 34 of IPC. The appellant/accused No.2 is ordered to be released forthwith, if he is not required in any other case.
If any fine amount has already been deposited, the same is ordered to be refunded to the appellant/accused No.2 on proper identification and acknowledgement.
Registry is hereby directed to communicate the operative portion of this order to the concerned jail authority for release of the appellant/accused No.2 forthwith, if he is not required in any other case.
Sd/- JUDGE KGR/PL* Sd/- JUDGE