Karnataka High Court
Basappa Annappa Badachi, vs The State Of Karnataka, on 9 June, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JUNE 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL NO.100300/2016
BETWEEN
BASAPPA ANNAPPA BADACHI,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: BASAVANGUNDI THOTA,
TAL: ATHANI, NOW AT COURT PRISON,
HINDALAGA, BELAGAVI.
... APPELLANT
(BY SRI.A.G.MULAWADMATH, ADV.)
AND
THE STATE OF KARNATAKA,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
DHARWAD.
... RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING THAT THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE PASSED BY THE LEARNED VIII
ADDITIONAL DISTRICT AND SESSIONS JUDGE COURT,
BELAGAVI IN SESSIONS CASE NO. 108 OF 2014 DATED
06.10.2016, FOR THE OFFENCES PUNISHABLE UNDER SECTION
302, 376, 511 OF IPC KINDLY BE SET ASIDE BY ACQUITTING
THE APPELLANT/ACCUSED.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:
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JUDGMENT
Appellant - accused has been convicted by the learned VIII Additional District and Sessions Judge, Belagavi (hereinafter referred to as Trial Court) in Sessions Case No.108/2014 dated 06.10.2016 for the offences punishable under Sections 302, 376 and 511 of IPC. He was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/- for the offence punishable under Section 302 of IPC, with a default sentence and he has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- for the offence punishable under Section 376 read with Section 511 of IPC. Challenging the same, the accused - appellant is before this Court.
2. We have heard the learned counsel Shri A.G.Mulwadmath for the appellant - accused and Shri V.M.Banakar, the learned additional S.P.P. for respondent - State.
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3. The factual matrix of the case of the prosecution are that on 02.02.2014 at about 04:00 p.m., when the deceased was sleeping in her bed room in the house of the accused, situated in the land belonging to the accused, he attempted to commit rape on her and when the deceased did not budge to his desire, accused with an intention to finish her off, throttled her to death and thereby he has committed the offence.
4. On receipt of the information, P.W.2, the father of the deceased came and an UDR complaint was registered and subsequently on 04.02.2014, when the complainant and the family members came to the house of the accused for the rituals of the deceased, the people gathered were talking among themselves that within two months of the marriage in the family of the accused, they have killed the deceased and one Shivappa and Tanappa informed that on 02.02.2014 at about 04:00 p.m. when they were passing near the house of the accused, they heard the crying sound of the deceased :4: and when they saw inside through the window, the accused caught hold of the deceased and was dragging her and at that time deceased was requesting the accused by saying that you being my father-in-law, do not behave in such manner and at that time, the accused dragged the saree of the deceased and made her to fall down on the ground and attempted to commit rape on her. It is further alleged that the deceased objected. At that time, accused fisted on her thighs and strangulated her neck tightly. At that time, the deceased stopped crying and by observing the same, they left the place and at about 05:00 p.m., the people have gathered in front of the house of the accused and the complaint was registered. On the basis of the said complaint, a case was a registered in Crime No.44/2014. Thereafter, after investigation, the charge sheet came to be filed.
5. After filing of the charge sheet, the learned Civil Judge and JMFC, Athani took cognizance and after following the procedure, the said case was committed to the Sessions Court and the learned Sessions Judge :5: registered the case and made over to the Trial Court which secured the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, the charge was prepared, read over and explained to the accused. The accused pleaded not guilty and claims to be tried. As such, the trial was fixed.
6. In order to prove the case of the prosecution, it got examined 22 witnesses, got marked 44 documents and 4 material objects. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. He denied all the incriminating circumstances appearing in the evidence of the prosecution. Accused has not led any evidence nor got marked any documents. After hearing both the parties, the impugned judgment of conviction and order of sentence came to be passed.
7. The main grounds urged by the learned counsel for the appellant - accused are that the judgment of conviction and order of sentence passed by :6: the Trial Court is contrary to law and the materials placed on record.
8. Though all the material witnesses including the complainant have not supported the case of the prosecution, the Trial Court only by relying upon the evidence of the Doctor P.W.13 and holding that the accused has to explain the unnatural death of the deceased, without looking into the well established proposition of law, has wrongly convicted the accused. It is his further submission that though there is ample material to show that it is not the accused alone who was residing in the said house, inspite of that the Trial Court taking shelter under Section 106 of the Evidence Act (in short hereinafter called 'the Act') has raised a presumption and has wrongly convicted the accused. It is his further submission that the records and the other materials clearly goes to show that the body of the deceased was inside the house on a cot and the door was got opened and they went inside and saw the dead body of the deceased. When nobody was there in the :7: house when the alleged incident has taken place, then under such circumstances, the Trial Court could have given the benefit of doubt. It is his further submission that though under Section 106 of the Act, a presumption has to be drawn, but initial burden is always there on the prosecution to establish its case beyond all reasonable doubt and only after proving certain facts, the burden shifts upon the accused. If initial burden is not discharged, then under such circumstances, the burden never shifts on the accused. Without looking into the said facts and circumstances, the Trial Court has wrongly convicted the accused. It is his further submission that though there is no legal evidence to connect the accused to the allege crime, the accused has been convicted. It is his further submission that neither in the postmortem report or any other material, evidence has been produced to show that the accused has sexually assaulted the deceased. But inspite of that the Trial Court has wrongly convicted the accused for the offence punishable under Section 376 :8: read with Section 511 of IPC. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence.
9. Per contra, learned Additional S.P.P. vehemently argued and submitted that the prosecution has clearly established that the death of the deceased has taken place in the house of the accused. It is also the case of the prosecution that the accused and the deceased alone were there in the house and an unnatural death has taken place in his house. Under these circumstances, the accused has to explain all the circumstances under which the death of the deceased has been caused. It is his further submission that all the facts which are within the knowledge of the accused has to be explained by him alone. Inmates of the house cannot get away by simply keeping quite. In the absence of any explanation, the accused is liable to be convicted. In order to support the case, he has relied upon the decision in the case of Gajanan Dashrath Kharate vs. State of Maharashtra reported in 2016 (3) KCCR SN :9: 305 (SC). It is his further submission that the Trial Court by invoking Section 106 of the Act, in the absence of any explanation by the accused, by drawing right inference has rightly convicted the accused. There are no good grounds to interfere with the judgment of the Trial Court. The judgment of the Trial Court deserves to be confirmed by dismissing the appeal. On these grounds, he prayed to dismiss the appeal.
10. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records, including the Trial Court records.
11. Prosecution in order to establish the case, has got examined 22 witnesses. P.Ws.1 and 6 are the recovery mahazar panchas to the clothes and the spot mahazar, as per Exs.P-2 and P-3. P.W.2 is the father of the deceased, who has lodged the complaint. P.Ws.3 and 4 are the panch witnesses. P.W.5 is the spot mahazar pancha, where the dead body was lying. P.Ws.7 and 8 are the eyewitnesses, who have seen the : 10 : accused dragging the deceased for sexual favour and strangulated her. P.W.9 is the elder brother of the deceased. P.W.10 is the relative of the complainant. P.W.11 is the scribe of the complaint, as per Ex.P-4. P.W.12 is the recovery mahazar pancha of the clothes of the accused. P.W.15 is the mother of the deceased. P.W.16 is also a panch witness to Ex.P-10. All these witnesses have not supported the case of the prosecution and they have been treated as hostile and nothing has been elicited in their cross-examination by the learned Public Prosecutor so as to substantiate the case of the prosecution.
12. P.W.13 is the Doctor who has conducted autopsy over the body of the deceased and has issued the postmortem report, as per Ex.P-21 and the opinion, as per Ex.P-22. P.W.14 is the Assistant Engineer, who has drawn the sketch, as per Ex.P-23. P.W.27 is the person who has received the complaint, as per Ex.P-31 and registered an UDR case in UDR No.8/2014. P.W.18 is the Shirestedar, in-charge of Taluka Executive : 11 : Magistrate, who conducted inquest over the body of the deceased.
13. P.W.19 is the Doctor, who has issued the FSL report, as per Ex.P-41. P.W.20 is the PSI, who registered the complaint filed by P.W.2 and issued the FIR. P.W.22 is the Investigating Officer, who partly investigated the case. P.W.21 is also the Investigating Officer who further investigated the case and filed the charge sheet.
14. It is the case of the prosecution that on the alleged date of the incident, when the deceased was there in the bedroom, in the house of the accused, the accused attempted to commit rape on her and when she did not budge to the need of the accused, with an intention to finish off her, he has throttled her to death.
15. In the instant case on hand, all the material witnesses have not supported the case of the prosecution and they were treated as hostile. The only evidence which is available before this Court is that of : 12 : P.W.13, the Doctor and other official witnesses. On perusal of the evidence of P.W.13 the Doctor, who conducted autopsy over the body of the deceased, in his evidence, nowhere he has deposed that the deceased has been sexually assaulted and even the postmortem report Ex.P-21 does not disclose that any signs of sexual assault having been committed over the body of the deceased. Even the opinion given by P.W.13, goes to show that the death is due to asphyxia, as a result of compression over the neck. Though such evidence was before the Court, the Trial Court without looking into any of the legal aspect has wrongly convicted the accused for the offence punishable under Section 376 of IPC. Even though P.Ws.7 and 8 are the witnesses, who are said to have seen the accused dragging the deceased for sexual favour, when they have not supported the case of the prosecution, then under such circumstances, the Trial Court ought not to have convicted the accused for the said offence. : 13 :
16. Though the postmortem report indicates the fact that the deceased died a homicidal death, due to the compression over the neck, but as could be seen from Ex.P-31, it is not only the accused - appellant, who was staying with the deceased. Apart from that her husband Raju and mother-in-law Surekha and brother- in-law Gurulinga and his wife Lakshmi used to stay together. Even the said document indicates that there was no problem in the house of the accused. On perusal of the judgment of the Trial Court, it has observed that the death of the deceased is caused in the house of the accused, when the accused and the deceased alone were present. In that light, it has drawn a presumption and convicted the accused.
17. In order to attract the provisions of Section 106 of the Act, the prosecution has to prove that on the date of the incident, it is the deceased and the accused alone were present in the house to which an outsider may not have any access. If the said fact has not been established by the prosecution, then under such : 14 : circumstances, the Court cannot draw a presumption under Section 106 of the Act and hold that the burden lies on the inmates of the house by cogent and acceptable explanation to show how unnatural death of the deceased has taken place and in the absence of such explanation, the accused is liable to be convicted. Always initial burden is there on the prosecution. In the first instance, it has to make an exercise with due diligence to show that the death was within the knowledge of the accused and accused and the deceased alone were there. Section 106 of the Act cannot be used to undermine the well established rule of law that in every exceptional class of cases, the burden is on the prosecution and it never shifts. When the prosecution has utterly failed to prove the initial burden, then under such circumstances, the Trial Court ought not have been relied upon the postmortem report Ex.P-21 and ought not to have drawn the presumption under Section 106 of the Act.
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18. For the purpose of brevity, we quote the decision of Hon'ble Apex Court in the case of Shambu Nath Mehra vs. State of Ajmer reported in AIR 1956 SC 404, at paragraph Nos.12, 13, 14 and 15 it has been observed as under:
"12. Illustration (b) to section 106 has obvious reference to a very special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not be purchased a ticket.
On the other hand, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance : 16 : of his explanation than for the State to establish its falsity.
13. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused.
This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.
14. Now what is the position here?
These journeys were performed on 8-9-1948 and 15-9-1948. The prosecution was launched on 19-4-1950 and the appellant was called : 17 : upon to answer the charge on 9-3-1951; and now that the case has been remanded we are in the year 1956. The appellant, very naturally, said on 27-4-1951, two and a half years after the alleged offences:
"It is humanly impossible to give accurate explanations for the journeys in
question after such a lapse of time". And what of the prosecution? They have their registers and books, both of the railway and of the department in which the appellant works. They are in a position to know and prove his official movements on the relevant dates. They are in a position to show that no vouchers or receipts were issued for a second class journey by the guard or conductor of the trains on those days.
This information was as much within their "especial" knowledge as in that of the appellant; indeed it is difficult to see how with all the relevant books and other material in the possession of the authorities, these facts can be said to be within the "especial" knowledge of the appellant after such a lapse of time however much it may once have been there. It would, we feel, be wrong to allow these proceedings to continue any longer. The appellant has been put upon his trial, the prosecution has had full and ample opportunity : 18 : to prove its case and it can certainly not complain of want of time to search for and prepare its material.
No conviction could validly rest on the material so far produced and it would savour of harassment to allow the continuance of such a trial without the slightest indication that there is additional evidence available which could not have been discovered and produced with the exercise of diligence at the earlier stages.
16. We set aside the order of the Judicial Commissioner and restore the order of the Sessions Judge acquitting the appellant on both counts of the charge framed against him.
19. When the initial burden has not been shifted by the prosecution, then under such circumstances, the Trial Court ought not to have applied the principles laid down in the case of Gajanan Dashrath Kharate quoted supra. In the said case, the factual matrix goes to show that the son and the murdering father were present in the house and the initial burden was discharged by the prosecution. Then under such circumstances, the Hon'ble Apex Court held that the burden lies on the inmates of the house to explain the : 19 : same with cogent explanation and in the absence of such, the Apex Court has rightly convicted the accused. The said ratio of the Hon'ble Apex Court is not applicable to the present case on the hand.
20. In the instant case on hand, the factual matrix clearly goes to show that when the alleged incident has taken place, not only accused who was residing in the said house and apart from that mother- in-law of the deceased, brother-in-law and the husband were also staying in the same house which is situated in a land.
21. Be that as it may. Even the evidence produced goes to show that when they came to the house, the body was lying on the cot and the house was latched from inside and thereafter, door was opened, and they went and saw the same. That itself goes to show that the accused was not present at the time of the alleged incident. Under the said facts and circumstances, the Trial Court ought to have acquitted the accused. The Trial Court without appreciating the : 20 : factual situation in its right perspective, has come to a wrong conclusion and has wrongly convicted the accused.
22. The judgment of the Trial Court is perverse and it is not sustainable in law. When all the material witnesses have not supported the case of the prosecution, then under such circumstances, the Trial Court ought not have been held that the prosecution has proved the case beyond all reasonable doubt. In that light also, the judgment of the Trial Court deserves to be set aside.
23. Taking into consideration the above said facts and circumstances, the appeal is allowed and the judgment of conviction and the order of sentence passed by the learned VIII Additional District and Sessions Judge, Belagavi in Sessions Case No.108/2014 dated 06.10.2016 is set aside and the appellant - accused is acquitted of the charges levelled against him. His bail bonds and surety bonds stand cancelled. : 21 :
The learned District Judge is directed if any fine amount is deposited by the appellant - accused, the same may be refunded to him on proper identification and acknowledgment.
Registry is directed to send back the lower Court records forthwith.
In view of disposal of the main appeal, I.A. No.1/2016 stands disposed of.
Sd/-
JUDGE Sd/-
JUDGE Rsh