Karnataka High Court
State Of Karnataka vs Smt. Sunanda on 6 October, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.566 OF 2014
BETWEEN:
STATE OF KARNATAKA
BY POLICE CIRCLE INSPECTOR,
BELTHANGADY CIRCLE,
BELTHANGADY - 574 214.
... APPELLANT
(BY SRI S. RACHAIAH, H.C.G.P.)
AND:
SMT. SUNANDA
AGED 45 YEARS,
W/O. MALLODI @ SHEENA,
RESIDING AT ELPEL KUKKEDI,
DARKASU HOUSE,
KUKKIPADI VILLAGE,
BANTWAL TALUK - 574 211.
... RESPONDENT
[BY SRI Y. NAGESH POOJARI, ADV. (ABSENT)]
***
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF THE CR.P.C. PRAYING TO GRANT LEAVE
TO APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 26-4-2014 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALORE, IN S.C. NO.158 OF 2012 ACQUITTING THE
ACCUSED-RESPONDENT FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF THE IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR
HEARING THIS DAY, B. VEERAPPA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the State being aggrieved by the judgment dated 26-4-2014 made in Sessions Case No.158 of 2012 on the file of the III Additional District and Sessions Judge, D.K., Mangalore, acquitting the accused for the offence punishable under Section 302 of the Indian Penal Code (for short, 'the IPC').
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2. It is the case of the prosecution that Mallodi @ Sheena (hereinafter referred to as 'the deceased') was a resident of Kukkedi Darkasu house of Kukkepadi village of Bantwal Taluk and coolie by profession. The accused is the wife of the deceased. P.W.5, P.W.6 and Ravi are the children of the deceased and the accused. In the village, the deceased, the accused and P.W.5 were residing. P.W.5 is working in a cashew nut factory, the deceased and the accused were doing coolie work. P.W.6 is working at Bagalakote and another son, i.e. Ravi is working at Nasik and they come occasionally. The deceased was a chronic alcohol addict and was spending his entire income for drinking alcohol and everyday, he used to come with intoxication of alcohol and used to abuse the accused, subjected her to cruelty and it went to the extent of intolerance that on 29-6-2012, there was a quarrel between the 4 deceased and the accused in the house at about 7:45 a.m., since the accused was fed up with the deceased of such quarrel used kathi (knife) and amputated the right ear of the deceased. Due to which, the accused fell shock and the accused left the house without attending him. The deceased suffered hemorrhage and succumbed to the injury. Having realised the act committed by the accused, she went near the shop of P.W.8-Gangayya Poojary and made an extra-judicial confession that she cut the ear of the deceased and requested his help. P.W.4-Dhanu @ Dharnappa, who was present near the shop of P.W.8, came to know about it and inform the same to P.W.3-Shridhara, a close relative of the deceased. Later, he lodged a complaint. The jurisdictional Police registered a case in Crime No.56 of 2012 for the offence punishable under Section 5 302 of the IPC and after investigation, the Police filed charge-sheet.
3. The learned Magistrate committed the case to the Sessions Court. The learned Sessions Judge framed the charges against the accused under Section 302 of the IPC and read over the charges to the accused, she pleaded not guilty and claimed to be tried.
4. In order to bring home the guilt of the accused, the prosecution examined twelve witnesses as P.W.1 to P.W.12, got marked sixteen documents as Ex.P.1 to Ex.P.16 and material objects as M.O.1 to M.O.6. After completion of evidence of the prosecution witnesses, the statement of the accused as contemplated under Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the incriminating evidence adduced 6 against her by the prosecution and not led any defence evidence.
5. After considering the oral and documentary evidence on record, the learned Sessions Judge framed four points for consideration and recorded a finding that the prosecution is able to prove the homicidal death of the deceased, but failed to prove the motive against the accused. Further, the learned Sessions Judge recorded a finding that the prosecution failed to prove that the accused committed the murder of her husband using kathi (knife) and failed to prove the case beyond reasonable doubt against the accused under Section 302 of the IPC. Accordingly, the learned Sessions Judge by the impugned judgment, acquitted the accused for the offence punishable under Section 7 302 of the IPC. Hence, the State preferred the present appeal.
6. Heard the arguments of the learned High Court Government Pleader for the appellant-State. There is no representation on behalf of the accused- respondent, even though, she was represented by the learned counsel.
7. Sri S. Rachaiah, learned High Court Government Pleader, has contended that the impugned judgment and order of acquittal is contrary to the material on record and is liable to be set aside. He further contended that the learned Sessions Judge appreciated the evidence of P.W.4 and P.W.8 before whom the accused made an extra- judicial confession, but erroneously acquitted the accused. He further contended that the learned Sessions Judge has not considered the evidence of 8 P.Ws.5 and 6-children of the deceased and the accused and P.W.7-brother of the accused, who are the material witnesses to the case of the prosecution and proceeded to acquit the accused. He further contended that the learned Sessions Judge failed to appreciate the recovery of M.O.1-kathi (knife) in the presence of P.W.4. Therefore, he contended that the learned Sessions Judge is not justified in acquitting the accused, who is involved in the homicidal death of the deceased. Therefore, he sought to allow the appeal.
8. In view of the contentions urged by the learned High Court Government Pleader for the appellant-State, the only point that arises for our consideration in this appeal is; 9
"Whether the prosecution has made out a case to interfere with the impugned judgment and order of acquittal for the offence punishable under Section 302 of the IPC?"
9. We have given our anxious consideration to the arguments advanced by the learned High Court Government Pleader for the appellant-State and perused the entire material including the original record carefully.
10. The substance of the case of the prosecution is that the deceased was a chronic alcohol addict and was spending his entire income for drinking alcohol. The deceased used to abuse the accused and subjected her to cruelty. Unfortunately, on the fateful day, i.e. on 29-6-2012, when there was quarrel between the deceased and the accused, the accused fed up with such quarrel 10 used M.O.1-kathi (knife) and amputated the right ear of the deceased and the deceased died due to hemorrhage and shock.
11. In order to re-appreciate the evidence of the prosecution witnesses, it is appropriate to have a cursory look at the evidence of the prosecution witnesses and the documents relied upon;
(i) P.W.1-Dr. Jeevan Lasrado, Medical Officer of Primary Health Centre, Benjanapadavu, Bantwal, conducted Post-Mortem on the dead body of the deceased and issued Post-Mortem examination report as per Ex.P.1. He has supported the case of the prosecution.
(ii) P.W.2-Dr. Geethalakshmi, Scientific Officer, R.F.S.L., Mangalore, issued Exs.P.4 and P.16-F.S.L. reports and Ex.P.5-serology report. She 11 has opined that viscera sample collected from the dead body of the deceased did not contain any residue of volatile poisons, pesticides, barbiturates, benzodiazepine group of drugs, toxic metal ions and anions.
(iii) P.W.3-Shridhara is the relative of the deceased and first informant. He has deposed that the deceased used to drink alcohol and used to quarrel with the accused and for this reason, he constrained to doubt against the accused to file a complaint.
(iv) P.W.4-Dhanu @ Dharnappa, brother of the deceased. He has witnessed the confession made by the accused. He is the witness to Ex.P.7-Spot Mahazar and Ex.P.8-Seizure Mahazar drawn by the Police. He has supported the case of the prosecution. 12
(v) P.W.5-Kusuma is the daughter of the deceased and the accused. She has not supported the case of the prosecution and turned hostile.
(vi) P.W.6-Prabhakar is the son of the deceased and the accused. He has not supported the case of the prosecution and turned hostile.
(vii) P.W.7-Jagadish is the brother-in-law of the deceased and brother of the accused. He has turned hostile.
(viii) P.W.8-Gangayya Poojary, owner of the wine shop where the deceased used to go to drink alcohol everyday. He has deposed that the accused made confession statement before him that she has cut the ear of the deceased.
(ix) P.W.9-Sundara is a panch witness to Ex.P.7-Spot Mahazar and Ex.P.8-Seizure Mahazar 13 drawn by the Police. He has supported the case of the prosecution.
(x) P.W.10-Chennappa is the close relative of the deceased. He is the witness to Ex.P.12-inquest panchanama in the Hospital. He has supported the case of the prosecution.
(xi) P.W.11-Radhakrishna, Head Constable, who carried the F.I.R. to the Court and supported the case of the prosecution.
(xii) P.W.12-Bhaskara Rai, Circle Inspector of Police, who investigated the case and filed final report.
12. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge recorded a finding that the prosecution is able to prove the case beyond 14 reasonable doubt that the death of the deceased is homicidal one and further recorded a finding that the prosecution is not able to prove the motive and involvement of the accused, except recovery of M.O.1-kathi (knife).
13. The learned Sessions Judge further recorded a finding that the entire case rests upon circumstantial evidence. The prosecution has not made out any circumstance to prove the involvement of the accused in the homicidal death of the deceased and passed the impugned judgment and order of acquittal.
14. On meticulous consideration of the entire oral and documentary evidence on record, the prosecution has divided this case into several segments. The circumstances which are relied upon by the prosecution are;
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i. Homicidal death;
ii. Motive;
iii. Extra-judicial confession made by the
accused before P.Ws.4 and 8; and
iv. Recovery of M.O.1-kathi (knife).
Homicidal death
15. On careful perusal of the oral and documentary evidence on record, it is clear that the entire case is based upon the circumstantial evidence and there is no eyewitness to the incident. It is the case of the prosecution that the accused has cut the right ear of the deceased due to the quarrel between the deceased and the accused. Chemical analysis report/F.S.L. report-Ex.P.16 issued by P.W.2-Dr. Geethalakshmi, Scientific Officer, is not disputed by the defence and there is no impediment 16 for reading Ex.P.16, which indicates that viscera sample collected from the dead body of the deceased did not contain any residue of volatile poisons or pesticides and for this reason, P.W.1-Dr. Jeevan Lasrado opined that the cause of the death of the deceased is due to hemorrhage and shock.
P.W.1 has been cross-examined by the defence, but discarded his version. It is further stated by P.W.1 that the time of death was between 36 to 48 hours prior to autopsy and the same is proposed time of death of the deceased. He also opined that M.O.1-kathi (knife) may cause the injury which is found on the dead body of the deceased. Nothing has been elicited in the cross-examination.
P.Ws.5 and 6 are the children of the deceased and the accused. They have not supported the case 17 of the prosecution, even though, their father died. The statement of the accused under Section 313 of the Code of Criminal Procedure pleaded ignorance and she does not know the cause for the death of her husband. Hence, taking into consideration the entire material on record, the prosecution is able to prove the homicidal death of the deceased.
Motive and extra-judicial confession made by the accused before P.Ws.4 and 8
16. In order to prove the motive of the accused, the prosecution relied upon the evidence of P.Ws.3, 4 and 8. P.W.3 is the first informant, who pointed out that the deceased used to drink alcohol and used to quarrel with the accused and for this reason, he constrained to doubt against the accused to file a complaint. But in the cross-examination, he 18 has admitted that he has never witnessed personally the quarrel between the deceased and the accused.
P.W.4 is the brother of the deceased and stated that there was quarrel between the deceased and the accused. He has stated that the deceased was drinking alcohol and therefore, there was quarrel between the couple and quarrel was routine for them. In the cross-examination, he has admitted that he has never witnessed personally the quarrel between the deceased and the accused.
P.W.8 is the owner of the wine shop. He has stated that the deceased was regular customer for his liquor shop and the accused was regular customer for his grocery shop. According to him, the deceased used to drink alcohol everyday. In the cross examination, he has admitted that the accused 19 never complained to him regarding consumption of alcohol by the deceased everyday.
P.Ws.5 and 6 are the children of the deceased and the accused and P.W.7 is the brother of the accused. They have stated that there was no quarrel between the deceased and the accused. Therefore, there is no substance in the case of the prosecution to hold that there was any occasion to quarrel between the deceased and the accused. From the evidence of P.Ws.5, 6 and 7 and an extra-judicial confession made by the accused before P.Ws.4 and 8 cannot be acceptable. Even P.W.4 has stated that he used to visit the shop of P.W.8 and on the date of alleged incident, he met the accused in the shop of P.W.8, where she confessed to him that she has assaulted her husband and for this reason, he went to the house of the accused and saw the dead body 20 of the deceased and informed the same to P.W.3. Evidence of P.W.8 clearly shows that he did not refer to the presence of P.W.4 at the time and as such, the absence of P.W.4 when the accused came to his shop is prominent. Further, if this is the version of P.W.8, when the accused came to his shop in presence of P.W.4 and C.W.7-Anni Poojary, the accused did not whisper anything. In spite of it, P.W.8 able to speak that he had entered into conversation with the accused where she did tell again that she had cut the ear of her husband. Therefore, the evidence of P.W.4 that he heard from the accused regarding assault made on her husband has not been supported by P.W.8. Hence, the version of P.W.4 as to the accused making any statement before him that she had cut the ear of her husband is unsafe to rely upon. The evidence of P.W.3 makes it clear that P.W.4 never whispered to him that the accused 21 has cut the ear of the deceased and did confess before him. Therefore, from the evidence of P.W.8 makes it clear that in the afternoon, when the accused came and confessed before him, in spite of such serious aspects was disclosed to him, he kept quiet in the shop till evening. Even after again the accused comes to his shop and goes to the house, but he did not follow her, only after 7:00 p.m., he went to the house of the accused, which shows the unnatural conduct on the part of P.W.8 and the same cannot be acceptable. Therefore, the motive and extra-judicial confession have not been established by the prosecution beyond reasonable doubt.
17. The Hon'ble Supreme Court in the case of SAHADEVAN AND ANOTHER v. STATE OF TAMIL NADU reported in (2012) 6 SCC 403, while 22 considering the extra-judicial confession made by the accused, held as under:
"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence.
Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.23
15. Now, we may examine some judgments of this Court dealing with this aspect.
15.1. In Balwinder Singh v. State of Punjab, this Court stated the principle that: (SCC p.265, para10) "10. an extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution.
Where an extrajudicial
confession is surrounded by
suspicious circumstances, its
credibility becomes doubtful and it loses its importance."
15.2. In Pakkirisamy v. State of T.N., the Court held that: (SC p.162, para 8) "8.... It is well settled that it is a rule of caution where the court would generally look for an 24 independent reliable corroboration before placing any reliance upon such extra-judicial confession."
15.3. Again in Kavita v. State of T.N., the Court stated the dictum that: (SCC p.109, para 4) "4. There is no doubt that convictions can be based on extra-judicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made."
15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in the case of 25 State of Rajasthan v. Raja Ram stated the principle that: (SCC p.192, para 19) "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made."
The Court further expressed the view that: (SCC p.192, para 19) "19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which 26 may tend to indicate that he may have a motive of attributing an untruthful statement to the accused...."
15.5. In the case of Aloke Nath Dutta v. State of W.B., the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed: (SCC pp.265-66, paras 87 & 89) "87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in 27 regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.
89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."
15.6. Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand v. State of Rajasthan held that: (SCC p.611, paras 29-30) "29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily 28 an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B.]
30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872."
2915.7. Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat, held as under: (SCC pp.772-73, para 53) "53. It appears therefore, that the appellant has retracted his confession. When an extra-
judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true."
15.8. Extra-judicial confession must be established to be true and made 30 voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754] and Pancho v. State of Haryana [(2011) 10 SCC 165].
The principles
16. Upon a proper analysis of the above- referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the 31 judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.
i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
ii) It should be made voluntarily and should be truthful.
iii) It should inspire confidence.
iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
v) For an extra-judicial confession to be the basis of 32 conviction, it should not suffer from any material discrepancies and inherent improbabilities.
vi) Such statement essentially has to be proved like any other fact and in accordance with law."
Recovery of M.O.1-kathi (knife)
18. M.O.1-kathi (knife) said to be the weapon of offence, which was used for inflicting injury on the right ear of the deceased. P.W.1-Dr. Jeevan Lasrado, who examined M.O.1, has opined that M.O.1 can cause the injury found on the ear of the deceased. So, if M.O.1 is to be accepted as a weapon of offence, the evidence of P.W.2-Dr. Geethalakshmi is also relevant as it is she who also examined M.O.1 along with M.Os.2 to 6-the clothes of the deceased and sampling of the bloodstains, wherein she has point 33 out that there was blood allover M.O.1 and it consists of human blood and it carried 'O' group human blood. Evidence of P.W.1 points out that the sampling of the blood from the dead body and the analysis of the blood sampling which is of 'O' positive. So, M.O.1 carries 'O' positive blood and the same has been explained through scientific evidence. Absolutely, there is no evidence that inflicting injury on the right ear of the deceased is caused by M.O.1 and the same is not supported by any of the witnesses.
P.W.4 stands in support of P.W.12 as to the seizure of M.O.1 inside the kitchen of the house. In the course of cross-examination, he has admitted that he does not know what is written in Ex.P.8- Seizure Mahazar and for the first time, he has seen M.O.1 in the Police Station. Further, he has 34 admitted that, he last visited the house of the accused on 30-6-2012 and till today, he never visited the house. If he has not visited the house of the accused, how it could be possible for him to witness the seizure of M.O.1. He did not stand in support what he has stated earlier in the chief-examination, but he has diluted the evidence in cross-examination admitting that he has seen M.O.1 for the first time in the Police Station and he has signed on Exs.P.7 and P.8. If that is so, Ex.P.7-Spot Mahazar said to have been drawn between 8:30 a.m. to 9:30 a.m. on 1-7-2012, wherein Ex.P.8-Seizure Mahazar drawn between 6:45 p.m. to 7.45 p.m. on 1-7-2012. Therefore, the evidence of P.W.4 with regard to seizure of M.O.1 is suspicious and doubtful. If Exs.P.7 and P.8 were signed at the same time, it shall be in the morning. In the morning, there was no arrest of the accused, or there was any seizure. 35 Hence, the evidence of P.W.4 do not inspire any confidence of this Court. Therefore, the prosecution has failed to prove that there is link in Ex.P.8- Seizure Mahazar, Ex.P.7-Spot Mahazar and confession statement made by the accused and the prosecution has not proved the use of M.O.1 based on the circumstantial evidence. M.O.1 seems to be planted on the accused so as to implicate her in the case. When the prosecution failed to prove the case based on circumstantial evidence, the motive or M.O.1 and an extra-judicial confession made before P.Ws.4 and 8 and only on the voluntary statement of the accused, the conviction cannot be imposed. Therefore, the impugned judgment and order of acquittal passed by the trial Court is just and proper and we see no ground to interfere. 36
19. For the reasons stated above, the point raised in the appeal is answered in the negative holding that the prosecution has not made out any case to interfere with the impugned judgment and order of acquittal for the offence punishable under Section 302 of the IPC in exercising the powers of this Court under Section 378(1) and (3) of the Code of Criminal Procedure, 1973. Accordingly, the appeal is dismissed being devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE kvk