Karnataka High Court
Monappa @ Muttappa vs The State Of Karnataka, on 11 June, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JUNE 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.A. NO.100164/2016
BETWEEN
MONAPPA @ MUTTAPPA
S/O YALLAPPA GUDUDUR,
AGE: 34 YEARS, OCC: DRIVER,
R/O: ARALIKATTI VILLAGE, TQ: HUBBALLI,
DIST: DHARWAD.
(NOW HE IS IN JUDICIAL CUSTODY)
... APPELLANT
(BY SRI.K.M.SHIRALLI, ADV.)
AND
THE STATE OF KARNATAKA,
BY HUBBALLI RURAL POLICE STATION,
REP. BY S.P.P. HIGH COURT OF KARNATAKA,
BENCH 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 TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION PASSED IN S.C. NO.77/2013 BY THE
HON'BLE I ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD
SITTING AT HUBBALLI DATED 27/04/2016 AND 29/04/2016
FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:
:2:
JUDGMENT
This appeal is directed against the judgment of conviction and order of sentence passed by the learned I Additional District and Sessions Judge, Dharwad sitting at Hubli (hereinafter referred to as the Trial Court) in Sessions Case No.77/2013 dated 27.04.2016, whereunder the accused was convicted and sentenced for an offence punishable under Section 302 of IPC.
2. We have heard the learned counsel Shri K.M.Shiralli for the appellant - accused and Shri V.M.Banakar, learned Additional S.P.P. for the respondent - State.
3. The facts necessary to unfold the prosecution narration may be stated thus;
The complainant filed the complaint stating that about nine years back his elder daughter Smt. Saroja was given in marriage to the accused, who was working as a driver. Out of the said wedlock, they have begotten two children namely Kumari Megha and Kumar Prajwal. It is further alleged that since one year, the accused was :3: suspecting the fidelity of the deceased and was quarrelling, assaulting and abusing her. It is further contended that the said fact was disclosed by the deceased when she came to the house of the complainant about two months back and she had remained with her parents. At that time, the father of the accused came and convinced that every thing would be fine and took deceased Saroja to the house of her husband. It is further alleged that on 16.10.2012 at about 05:00 p.m. the complainant along with his relative one Basavaraj Kuruvinakoppa had been to Kundagol. At that time, his elder brother Holeyappa contacted him over the phone and disclosed that the accused by suspecting the character of Saroja has murdered her and has run away by locking the house and also stated that said fact has been informed to him by the neighbour Smt.Yllavva. Immediately they rushed and when they went near the house of the accused, they noticed that it was locked from out side and as the lock did not open, they opened the cement sheets and peeped into the house and found the dead body of the deceased Saroja in the pooja room and also found injury on head, neck and other parts of the :4: body. When they made an enquiry, Smt. Yallavva, who is the neighbour, informed that about 03:00 p.m. the accused had picked up quarrel and started beating the deceased and she pacified the matter. But at about 03:30 p.m., the accused came out of the house and claimed that he has murdered Smt.Saroja by assaulting with pick axe and he locked the door of the house by leaving his son Prajwal and ran away. On the basis of the complaint, a case was registered in Crime No.241/2012 and thereafter, after investigation, the charge sheet was filed against the accused.
4. The learned Magistrate after following the procedure has committed the case. The Trial Court took cognizance and secured the presence of the accused. After hearing the learned Public Prosecutor and the learned counsel for the accused, the charge was prepared, read over and explained to the accused. Accused pleaded not guilty. He claims to be tried. As such, the trial was fixed.
5. To prove the case of the prosecution, the prosecution examined 16 witnesses, got marked 27 :5: documents and 12 material objects. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating materials as against him. He denied the same. He has filed his written statement and the same was placed on record. After hearing the learned Public Prosecutor and the learned counsel for the accused, the Trial Court found the accused guilty and convicted. Challenging the legality and correctness of the judgment, the accused is before this Court.
6. The main grounds urged by the learned counsel for the appellant - accused is that the judgment of conviction and sentence is contrary to law, evidence, facts and probabilities of this case. The Trial Court gravely erred in convicting the accused only on the evidence of interested witnesses, though the prosecution failed to connect the accused to the alleged crime. It is his further submission that the material witnesses residing by the side of the house of the accused, have not supported the case of the prosecution and they have been treated as hostile. Inspite of such evidence, the Trial Court has convicted the :6: accused. It is his further submission that the evidence of P.W.1 is hearsay. C.W.12 informed C.W.10, inturn he had informed P.W.9 - the complainant and he filed the complaint. It is his further submission that though in his evidence, P.W.9 has deposed that the matter was informed to the elders and they had advised the accused, he do not know who were the elders present who had pacified the quarrel between the accused and the deceased. It is his further submission that the door of the house was opened by breaking open the lock as per the evidence of P.W.9. But in the spot mahazar Ex.P-5, the said aspect has not been mentioned. It is his further submission that the Trial Court has not considered the fact that always the initial burden is on the prosecution to establish the case. If the initial burden has not been discharged to the effect that it is the accused and the deceased were last seen together in the premises to which an outsider may not have any access to it, under such circumstances, the burden will not shift on the accused to explain any fact under Section 106 of the Evidence Act (hereinafter in short called 'the Act'). :7:
7. It is his further submission that the Doctor who came to be examined before the Court as P.W.15 has clearly admitted that the Duty Doctor has noted down the injures and the said witness voluntarily stated that for the first time she has seen the injuries noted down by the Surgery Duty Doctor. She has also further admitted that in Ex.P-22 she has not mentioned as to who had given the history and also admitted that the name of the injured who had given the history is not shown in the OPD Chit and she has not shown the age of the injuries also. She has further admitted that she has not shown the injury whether they were human bites or animal bites. She has also admitted that she has shown multiple bite marks but she has not shown whether they were human bites or animal bite marks. She has also further admitted that she personally do not know who has noted down the injuries on the back of Ex.P-22. She has further admitted that the name of one Bhuvanappa is shown in Ex.P-22. But even after considering the said aspect, the Trial Court has erroneously convicted the accused, only on presumption and assumption though there is no material as against the :8: appellant accused. On these grounds, he prayed to allow the appeal and acquit the accused.
8. Per contra, learned Additional S.P.P. vehemently argued and submitted that there is a strong motive to the effect that by suspect that the daughter of the complainant was having illicit relation and by suspecting her character, the accused used to quarrel and used to assault. The said fact was told by the deceased to the complainant. It is his further submission that in the evidence of P.Ws.2, 7 and 8, they have clearly stated that it is only the accused and the deceased used to stay in the said house and when the complainant came, he saw the house door was locked and the accused had run away from the said place. In that context, the Trial Court has rightly considered the evidence and has rightly convicted the accused by taking shelter under Section 106 of the Act. It is further submitted that the accused to explain under what circumstance the deceased had died with unnatural death. In the absence of any explanation, the accused is liable to be convicted for the alleged offence. On these :9: grounds, he prayed to dismiss the appeal as devoid of merits.
9. 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.
10. The prosecution in order to prove its case got examined 16 witnesses. P.W.1 is the Assistant Engineer, P.W.D. He has spoken with regard to the visiting the spot and preparing the sketch, as per Ex.P-1. P.W.2 is the Gram Panchayat Development Officer. He has issued the property extract where the accused and the deceased used to stay, as per Ex.P-2. P.W.3 is the Head Constable, who has carried the FIR to the Jurisdictional Magistrate and submitted.
11. P.W.4 is the Police Constable, who has carried the seized articles on 21.11.2012 to RFSL, Belagavi for Chemical examination. P.Ws.5 and 11 are the panch witnesses to inquest mahazar Ex.P-4, spot mahazar Ex.P-5 and recovery mahazar Ex.P-6.
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12. P.W.6 is the pancha to the personal search of the accused. He has noticed the bite marks on both the hands of the accused. P.Ws.7 and 8 are the neighbourers, who have informed about the incident to C.W.10 and have spoken about the earlier quarrel and confession made by the accused before them.
13. P.W.12 is the seizure mahazar pancha of the clothes of the deceased and before him, the accused has also made an extra judicial confession. P.W.13 is also a panch to Exs.P-17 and P-13, whereunder the clothes of the deceased were seized by drawing the mahazars.
14. P.W.9 is the father of the deceased and he is the complainant. He has deposed that immediately after short span of the time after the marriage of the deceased, the accused started suspecting her character and they were quarrelling with each other and accused used to assault and abuse her which was told by the deceased over the phone and also told that she will not go to the house of her husband. He has further deposed that he received a telephonic message when himself and C.W.13 had been to : 11 : Kudngol and accordingly, he went to the house of the accused and there he removed the sheets of the house and saw the dead body of the deceased and the deceased was not having any clothes and by the side of the body of the deceased, spade, pick axe and a chopper were lying and the villagers also gathered and when he enquired with C.W.8, she narrated that the accused had assaulted the deceased with pick axe and caused her death. During the course of cross-examination, he has deposed that about 13 years back, the marriage of his daughter was performed and prior to 2 to 3 years of the death of the deceased, there were quarrels between the deceased and the accused. He deposed that he is not remembering as to who were the elder persons who have pacified the said quarrel. Except that nothing has been brought on record and other suggestions have been denied by the said witness.
15. P.W.10 is the friend of P.W.9. He has also reiterated the evidence of P.W.9. P.W.14 is the Doctor who conducted autopsy over the body of the deceased and he has mentioned the injuries found over the body of the : 12 : deceased and has opined that the death is due to shock and haemorrhage as a result of injuries sustained by the deceased and has issued post mortem report as per Ex.P- 20 and he has also given his opinion as per Ex.P-21.
16. P.W.15 is another Doctor who has examined the accused. In her evidence, she has deposed that on 17.10.2012, Rural Police Station, Hubballi brought the accused for treatment. He gave the history of bite and assault by his wife on 16.10.2012 at about 06:00 p.m. She has further deposed that she examined the injuries and found multiple bite marks present on the right middle finger and left fore finger and little finger and the left hand was swollen. She has further deposed that the Surgery Duty Doctor has noted down the injuries and she has volunteered that for the first time in the court she has seen the injuries have been noted down by the Surgery Duty Doctor. During the course of cross-examination, she has admitted that in Ex.P-22, it has not been mentioned as to who has given the history and the name of the injured who had given the history is not shown in the OPD chit. She has further deposed that she has not shown the age of : 13 : the injuries and has also not shown whether the injuries were human bites or animal bites. She has further deposed that she personally do not know who has noted down the injuries on the back of Ex.P-22. Further she has admitted that the name of Bhuvanappa is shown in Ex.P22. P.W.16 is the Investigating Officer, who investigated the case and filed the charge sheet as against the accused.
17. On perusal of the records, P.Ws.5, 6, 7, 8, 11, 12 and 13 have not supported the case of the prosecution and they have been treated as hostile.
18. As could be seen from the evidence of PWs.9 and 10, it indicates the fact that in the first instance, it is the C.W.12 who informed C.W.10 and C.W.10 informed the said fact to P.W.9. So in that light, if the evidence of P.W.9 is looked into, it is nothing but hearsay evidence that he has not directly received any information about the alleged incident.
19. As could be seen from the evidence and materials placed on record, it is P.W.7 who informed the said fact to C.W.10 with regard to the quarrelling and : 14 : subsequently the accused locking the door and going away. But the said witness has not supported the case of the prosecution and she has been treated as hostile. The eyewitnesses P.Ws.7 and 8 are the neighbourers residing by the side of the house of the accused have not supported the case and in that light the evidence is lacking. Though P.Ws.9 and 10 have deposed but their evidence is only hearsay evidence. The Trial Court has taken the shelter under Section 106 of the Act and it has come to the conclusion that when the prosecution establishes the facts that it is the accused and the deceased who were staying together and it is for the accused to establish the facts which are within the knowledge of the accused and if he does not explain, then under such circumstances, the accused is labile to be convicted and in that light, the Trial Court has convicted the accused.
20. It is well settled proposition of law that except in an exceptional cases, the burden of proof always is there upon the accused and it never shifts. In the instant case on hand, the prosecution has not clearly established the fact that the accused and the deceased alone were : 15 : residing in the said house and it is not accessible to any other person and what is within the knowledge of the accused has also not been established. Under such circumstances, the burden of proof does not shifts upon the accused. For this proposition of law, we want to rely upon the decision in the case of Shambu Nath Mehra vs. State of Ajmer reported in AIR 1956 SC 404, at paragraph Nos.12, 13, 14, 15 and 16, it has been observed as under:
"11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word "especially" stresses that It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that : 16 : in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.
It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle vs. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R, 1936-3 All ER 36 at p. 49(B).
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.: 17 :
On the other band, 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 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, : 18 : 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 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".
15. 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 : 19 : 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 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.
21. Keeping in view the ratio laid down in the above said decision and on perusal of the records, the prosecution has not established the fact that it is the accused and the deceased alone were residing when the : 20 : alleged incident has taken place and the said premises is not accessible to any other person and the reason for death of the deceased is within the knowledge of the accused. Under such circumstances, it cannot be held that the said relevant and material information was within the special knowledge of the accused and in that light, the prosecution ought not have relied upon the provision of Section 106 of the Act. The Trial Court without looking into the said aspect has wrongly decided the case. The prosecution must also establish the fact that when the couple was last seen in a premise to which the outsider may not have any access, then only the burden shifts upon the husband to explain the grounds for unnatural death of his wife. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Dnyaneshwar vs. State of Maharashtra reported in (2007) 10 SCC 445, at para 10 it has been observed as under:
"10. It has not been disputed before us that the deceased was murdered in her matrimonial home. It is not the case of the appellant that the offence was committed by somebody else. It is also not his case that there was a possibility of an outsider to commit : 21 : the said offence. One of the circumstances which is relevant is that when the couple was last seen in a premises to which an outsider may not have any access, it is for the husband to explain the ground for unnatural death of his wife. In Raj Kumar Prasad Tamarkar vs. State of Bihar reported in (2007) 10 SCC 433, this Court held:
22. The conspectus of the events which had been noticed by the learned Sessions Judge as also by the High Court categorically goes to show that at the time when the occurrence took place, the deceased and the respondent only were in the bedroom and the terrace connecting the same.
There was no other person. The cause of death of the deceased Usha Devi i.e., by a gunshot injury is not disputed. The fact that the terrace and the bedroom are adjoining each other is not in dispute.
23. The autopsy report shows that 'a blackening and charring' existed so far as Injury (i) is concerned. The blackening and charring keeping in view the nature of : 22 : the firearm, which is said to have been used clearly go to show that a shot was fired from a short distance.
Blackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet. It, therefore cannot be a case where the death might have been caused by somebody by firing a shot at the deceased from a distance of more than 6 feet. The place of injury is also important. The lacerated wound was found over glabella (middle of forehead). It goes a long way to show that the same must have been done by a person who wanted to kill the deceased from a short distance. There was, thus, a remote possibility of causation of such type of injury by any other person, who was not on the terrace. Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. The onus was : 23 : on him. He failed to discharge the same."
22. Keeping in view the ratio laid down in the above said two decisions, we are of the considered opinion that though the prosecution has not established the said circumstances, only on presumption and assumption, the Trial Court has taken the shelter under Section 106 of the Act and has convicted the accused.
23. Though it is contended by the learned Additional S.P.P. that P.W.9, the father of the deceased and P.W.10, the friend of the complainant have supported the case of the prosecution, as stated earlier, the evidence of P.W.9, the father of the deceased, on perusal, it does not repose any confidence in the first instance. He has deposed that by suspecting the character of the deceased, accused and deceased used to quarrel and accused used to assault and the deceased had informed him over the phone and has informed when she has visited his house. Admittedly, the said fact was not informed to the Police Station and even though he has deposed that the said quarrel has been pacified by the elders, he is not aware of : 24 : the names of the said persons who had pacified the quarrel between the deceased and the accused and even he himself has not gone to pacify the quarrel. When there is a quarrel in between the son-in-law and the daughter, it surprises that he has not gone to pacify the quarrel. Even the prosecution has not clearly established the motive to the effect that the accused was suspecting the character and that there was a quarrel. Absolutely there is no evidence except the evidence of P.W.9. P.W.10 who is the friend of P.W.9 has only reiterated the evidence with regard to he visiting the place and C.W.8 Yallavva informing over the phone. But when P.W.7 she herself has turned hostile and she has not supported the case of the prosecution, under such circumstances, he receiving a message from P.W.7 about the alleged incident and informing the accused quarrelling and thereafter he informing that he has finished his wife and locking the door and going away, does not substantiate from the evidence which has been produced before the Court. Looking from any angle, we are of the considered opinion that the evidence which has been produced does not inspire the : 25 : confidence of this Court so as to confirm the judgment of conviction.
24. We have carefully and cautiously gone through the judgment of the Trial Court. Though there is no credible evidence to connect the accused to the alleged crime and on wrong footing, a presumption has been drawn under Section 106 of the Act and wrongly convicted the accused. The same is not in accordance with law. In that light, the said judgment is liable to be set aside.
25. Keeping in view the said facts and circumstances, we pass the following order:
ORDER The appeal is allowed. The judgment of conviction and order of sentence passed by the I Additional District and Sessions Judge, Dharwad, sitting at Hubli in S.C. No.77/2013 dated 27.04.2016 is set aside and the appellant - accused Monappa urf Muttappa S/o. Yallappa Gududur is hereby acquitted of the charges levelled against him and he is set at liberty forthwith, if he is not required in any other case.: 26 :
The Jail Authorities are herby directed to release the appellant - accused Monappa urf Muttappa S/o. Yallappa Gududur forthwith, if he is not required in any other case.
Registry is directed to intimate the I Additional District and Sessions Judge, Dharwad, sitting at Hubli and the Jail Authorities through e-mail to release the appellant
- accused Monappa urf Muttappa S/o. Yallappa Gududur forthwith, if he is not required in any other case.
In view of disposal of the main appeal, I.A. No.1/2016 does not survive for consideration. Hence, disposed of.
Registry to send back the lower Court records forthwith.
Sd/-
JUDGE Sd/-
JUDGE Rsh