Karnataka High Court
Rangaswamy H H vs The State Of Karnataka on 14 July, 2023
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14th DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.77 OF 2017
BETWEEN
RANGASWAMY H.H ,
S/O HALAPPA,
AGED ABOUT 28 YEARS,
AGRICULTURE,
R/O HALYAPPA GUDDADA
SANTHENAHALLI VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT-577 526.
...APPELLANT
(BY SRI. S.B. PAVIN, ADVOCATE)
AND
THE STATE OF KARNATAKA,
BY CHITRADURGA RURAL POLICE
STATION,
CHITRADURGA DIST-577 501,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
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THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED
08.12.2016 AND SENTENCE DATED 16.12.2016 PASSED BY
THE I ADDL. DIST. AND S.J., CHITRADURGA IN
S.C.NO.26/2016 - CONVICTING THE APPELLANT/ACCUSED
NO.1 FOR THE OFFENCE P/U/S 498(A), 302, 201, 203 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 21.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, RAJESH RAI.K
J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the convicted accused No.1 is directed against the judgment of conviction and order of sentence dated 08.12.2016 passed in S.C.No.26/2016 by the 1st Additional District and Sessions Judge, Chitradurga, convicting the appellant/accused No.1 for the offence punishable under Sections 498(A), 302, 201 and 203 r/w Section 34 of IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.10,000/- for the offence punishable under Section 302 of IPC and further, directed to undergo rigorous imprisonment for a period of 3 years for the offence punishable under Section 201 of IPC and to undergo rigorous imprisonment for a period of 2 years for the offence punishable under Section 498(A) of IPC and also directing him to undergo rigorous imprisonment for a period of 1 year for the offence punishable 3 under Section 203 of IPC. It is ordered that all sentence shall run concurrently.
2. The factual matrix of the prosecution case is that the Chitradurga Town Police registered the Crime in Cr.No.419/2015 dated 23.09.2015 at about 17 hours for "missing person" namely one Divya, on the basis of the complaint of accused No.1 who is none other than her husband. Later the police investigated the matter and arrested accused No.1 and accused No.2-one Rathnamma, who is none other than the mother of accused No.1 in the aforesaid crime and registered the FIR against them for the offence punishable under Sections 498(A), 302, 201 and 203 r/w Section 34 IPC based on the further complaint lodged by PW.1-Gangadharappa, who is the father of the deceased Divya. It is alleged in the complaint that his daughter Divya had completed BBM and MBA in Manipal University and she was unemployed. When she was studying at Holalkere, accused No.1-Rangaswamy was also studying at Holalkere Government College and they both fell in love. As such, accused No.1 wanted to marry Divya. However, marriage of Divya was fixed with one Suresh and during the course of 4 marriage talk, it was decided to give Rs.1,80,000/- and 10 thola of gold to the said Suresh as a dowry and accordingly, engagement was performed. Later, the said marriage was cancelled and the said Suresh informed the patents of the deceased Divya that Rangaswamy i.e., accused No.1 had taken Divya and requested them not to search her. Accordingly, accused No.1 married Divya and after the marriage, he was insisting his wife to get Rs.1,80,000/- which was promised to give Suresh. As such, he used to quarrel with the deceased and used to give mental and physical torture. Even, he used to snatch Mangalsutra/Thali from his wife and sent her to the parents house. The said deceased Divya was working as a part time teacher in a Computer Coaching School at Holalkere. It is the further case of the prosecution that the deceased Divya came to the house of PW.1- complainant for Gowri festival and informed PW.1, her mother and her sister that her husband is torturing her to bring money. Things stood thus, on 20.09.2015, accused No.1 telephoned Divya and asked her to come to home as he is not well. Hence, PW.1 sent his daughter with one Raghu. Later on 22.09.2015, the second daughter of PW.1 received the 5 SMS to her phone No.8495065602 from the mobile of Divya stating that herself and her husband were going to hospital. On the same day, at about 10.29 p.m., PW.2-Chitra, the second daughter of PW.1 received another SMS to her mobile that Divya is going with her old friend and not to search for her. Hence, PW.1 started to call his daughter, however, she did not received the call. Though, the second daughter of PW.2-Chitra, continuously called his sister Divya but there was no response. Later PW.1 came to know that on 23.09.2015, the accused gave a missing complaint before the police stating that in the evening at about 7.00 p.m., Divya went to bath room in private bus stand, Chitradurga, and she has not returned and she was not traceable. However, PW.1 suspected his son-in-law that he must have done something to his daughter and thereby, he requested to make an enquiry. Hence, PW.1 along with others went to the house of accused No.1-Rangaswamy and took him to the police station wherein accused No.1-Rangaswamy revealed before the police by way of confession statement that on 29.10.2015, the accused, with an intention to take away the life of Divya, took her to the Clinic of Dr.Sajjan and from there, he got an Indica 6 Car of his friend Nagaraja and on the way to Chitradurga, he purchased a gunny bag in a provisional store of one Ramesh at Holalkere and near Janakonda Village Gate, Anjaneyaswami temple at about 8.00 p.m., he stopped the car and made his wife Divya lay on the back seat and assaulted her and inserted plastic covers in her mouth, strangulated with her vale and thereby, removed her gold jewels and destroyed the evidence by way of deposing the dead body by taking the same in the said car on National Highway towards Davanagere and near Ghoshala of Adhichunchanagiri bridge built on Katralu lake, he stopped the car and put five stones in the gunny bag and drowned the body in the said gunny bag and threw the body in the lake and took away the jewels of the deceased. Hence, the respondent-police conducted the investigation, recovered the dead body of the deceased from the place shown by the accused and thereafter, laid the charge sheet against the accused for the afore-stated offences before the committal Court.
3. On committal of the case to the Court of Sessions, the learned Sessions judge framed the charges against accused Nos.1 and 2 for the offences punishable under 7 Sections 302, 201, 203 and Section 498(A) r/w Section 34 of IPC and the charges read over to the accused. However, the accused denied the charges and pleaded not guilty for the charges levelled against them and claims to be tried.
4. In order to bring home the guilt of the accused, the prosecution in all examined 33 witnesses as PW.1 to PW.33 and got marked as many as 65 documents as Exs.P1 to P.65 and also 19 material objects as MOs.1 to 19. After closer of the prosecution evidence, the incriminating portion of the evidence of the witnesses read over to the accused under Section 313 of CR.PC and the accused denied the same. However, the accused did not choose to examine any witness on their behalf so also did not got marked any documents on their favour.
5. After hearing learned counsel for both the sides and also assessment of oral and documentary evidence available on record, the learned Sessions Judge convicted the accused for the aforesaid offences. The said judgment is challenged under this appeal.
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6. We have heard Sri. S.B.Pavin, learned counsel for the appellant and Sri Vijayakumar Majage, learned Additional SPP for the respondent-State and perusal of the trial Court records.
7. Learned counsel for the appellant, vehemently, contended that the judgment under this appeal suffers from perversity and illegality and the learned Sessions Judge convicted the accused without appreciating the evidence available on record. According to the learned counsel though the entire case rests upon circumstantial evidence, the prosecution failed to prove the chain link of the circumstances. In spite of that, the learned Sessions judge convicted the accused without there being proper evidence on record. Learned counsel would further contend that PW.1 i.e., the father of the deceased, PW.2-the younger sister of the deceased, PW.6-the cousin brother of the deceased and PW.7-one more cousin brother of the deceased and PW.8-the relative of the deceased and PW.9-the relative of the deceased, being the relatives of the deceased, are most interested witnesses and their version though cannot be believed for any purpose, without there being any 9 corroboration, the learned Sessions Judge totally relied on these witnesses and convicted accused No.1 for the charges levelled against him. Though all these witnesses deposed to the extent of harassment meted out by the accused to his wife for demand of dowry of Rs.1,80,000/-. However, in the same time, all these witnesses are hearsay witnesses. According to them, the deceased came to their house on the eve of Ganesha festival and at that time, she informed them about the alleged cruelty meted out by the accused. Hence, the learned counsel submits that the learned Sessions Judge has committed a grave error by convicting the accused for the offence punishable under Sections 302, 201 and 203 of IPC.
8. Learned counsel would further contend that learned Sessions Judge much relied on the evidence of above witnesses and also the evidence of PW.11 and PW.13, who are the witnesses for the inquest mahazar conducted on the tank bund of the river where the accused shown the dead body tied in the gunny bag. Hence, learned Sessions Judge totally relied on the circumstance of recovery of the dead body at the instance of the accused. Thus, learned counsel would contend that the said recovery cannot be the base for 10 conviction for the reason that the respondent-police recorded the voluntary statement of the accused forcibly in their custody. Further, according to the learned counsel, the other circumstance like last seen theory is totally not proved by the prosecution and also the homicidal death of the deceased also not proved beyond reasonable doubt since the dead body was totally decomposed. Further, the identification of the dead body by the family members is totally doubtful. Though the doctor gave an opinion in the post mortem report as per Ex.P33 that the death was caused by strangulation, the said opinion was not based on the examination of the dead body since the hyoid bone and the thyroid bone were totally dislocated. Hence, without examining the same, the doctor cannot come to the conclusion that the death was by way of strangulation. Hence, according to the learned counsel, the homicidal death of the deceased also not proved by the prosecution. The learned Sessions Judge much relied on the SMS said to have been sent by accused No.1 from the mobile of the deceased to PW.2-the sister of the deceased. The said message along with the mobile was seized and marked as MO.4 by the Investigation Officer. Though the recovery of said 11 MO.4 supported by the witnesses i.e., PW.2 and PW.20 as per Ex.P4, the same cannot be relied for the reason that the prosecution failed to produce any purchase receipt of the mobile belongs to the deceased. As such, the said circumstance also not proved beyond reasonable doubt.
9. Learned counsel would further contend that the recovery of other material objects i.e., MOs.1 to 13 under Ex.P19 was not fully supported by the pancha witness-PW.16. As such, the prosecution also failed to prove the said aspect. Accordingly, learned counsel would contend that since the case rests on the circumstantial evidence, the prosecution has failed to prove beyond the reasonable doubt. As such, the judgment challenged herein is liable to be set aside.
10. Per contra, Sri Vijayakumar Majage, learned Additional SPP, vehemently, contended that the judgment under appeal does not suffers from any perversity or illegality and the same has been on the evidence available on record and the learned Sessions Judge rightly convicted the accused for the charges levelled against them since the prosecution proved its case beyond the reasonable doubt. He would 12 further contend that accused No.1 after marrying the deceased, started to harass her both physically and mentally by forcing her to bring a sum of Rs.1,80,000/- from her parental house and as such, he used to assault her. The said aspect was revealed by the deceased to her parents, sister and other relatives. He further contended that before the incident, she visited her parents house on the eve of Ganesh Festival and she clearly stated about the harassment meted out by her husband to bring the amount of Rs.1,80,000/-. To that effect, PW.1, PW.2, PW.8, PW.9 and PW.10 categorically deposed in their evidence that the accused used to harass the deceased both physically and mentally. As such, the prosecution proved the said aspect beyond reasonable doubt. Hence, according to the learned Additional SPP, the motive for the incident is that the accused forced the deceased to bring dowry amount of Rs.1,80,000/- from her parental house. When the deceased showed her inability, the accused hatched a conspiracy to commit her murder. Hence, the prosecution also proved the motive for the commission of the crime.
11. The next important circumstance which the prosecution relied is that the recovery of the dead body at the 13 instance of accused No.1 from the tank bund of Katrala river. Accused No.1 led the Investigating Officer and the witnesses to the tank bund of Katrala river and showed the gunny bag wherein the dead body of the deceased was found. Hence, the major circumstances of recovery of dead body at the instance of accused No.1 played a vital role to prove the guilt of the accused. Further, on examination of the dead body, the doctor clearly gave his opinion that the death is by strangulation as per Ex.P33. Hence, according to the learned Additional SPP, the prosecution has proved the homicidal death of the deceased. Further, the one more important circumstance the prosecution proved beyond reasonable doubt is the recovery of MO.4 i.e., the SMS sent by accused No.1 on the date of incident to the mobile of PW.2 stating that the deceased went along with his old boy friend. The said SMS along with the mobile marked as MO.4 and the same was seized under Ex.P4 and the said mahazar was supported by PW.2 and PW.20. Even otherwise, the conduct of accused No.1 creates a clear doubt that after committing the murder of his wife/deceased, accused No.1 himself lodged a missing complaint as per Ex.P66 stating that his wife was missing 14 from 22.09.2015. Hence, lodging of said missing complaint by the accused is only to mislead the investigation. That aspect of the matter also plays important role. Learned Additional SPP also states that the hearsay witnesses also clearly supported the case of the prosecution and the gold ornaments of the deceased, which was recovered at the instance of accused No.1 and pledged by him before the pawnbroker, were identified by PW.1 and PW.2 i.e., the father and the sister of the deceased. Hence, according to the learned Additional SPP, the prosecution proved all the circumstances and as such, the learned Sessions Judge rightly convicted accused No.1 for the charges levelled against him. He would further contend that even otherwise, accused No.1 failed to give any explanation in respect of missing of his wife. Since the same was in his special knowledge, he is duty bond to explain the same under the provisions of 106 of Indian Evidence Act. Hence, the learned Additional SPP prays to dismiss the appeal.
12. We have bestowed our anxious consideration on the oral and documentary evidence placed before us and also 15 meticulously perused the material available on record including the trial Court records.
13. In the facts and circumstance of the case, in the light of submissions made on both the sides, the points that would arise for our consideration are:
1) Whether the judgment under the appeal suffers from any perversity or illegality? and
2) Whether the learned Sessions Judge justified in convicting accused No.1 for the offence punishable under Sections 498(A), 302, 201 and 203 r/w Section 34 of IPC?
14. This Court being the Appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the entire prosecution witnesses and the documents relied upon. A cursory glance of the evidence available on record are as under:
i. PW.1-Gangadharappa, who is none other than the father of the deceased Divya, lodged the complaint. He deposed that his daughter Divya married accused No.1 on 02.12.2013 before Sub Register Office, Chitradurga and for one year, he did not allowed her into his house. Later, his wife 16 allowed her to enter his house. He further deposed that accused No.1 was insisting Divya to bring money from the parental house and several panchayaths were taken place on that aspect. He further deposed that on 22.09.2015, his younger daughter received SMS to her mobile from the deceased Divya stating that she is going with her old boy friend. Thereafter, he made an attempt to search Divya and finally, himself and his boys chased accused No.1, caught him and handed over to the police wherein, he gave voluntary statement as per Ex.P1 and he showed the dead body of the deceased and so also deposed about the incident.
ii. PW.2-Chitra, the young sister of the deceased Divya reiterated the version of PW.1 and deposed that on 22.09.2015 at about 4.25 p.m., she received a SMS from the mobile of her sister Divya stating that accused No.1 is not well and she accompanied him to the hospital. Later, at about 10.30 p.m., she received one more message that she is going with her old boy friend. As such, the complaint was lodged and subsequently, she came to know that the accused committed the murder of his sister.
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iii. PW.3-Chetan is the circumstantial evidence. He turned hostile to the prosecution case.
iv. PW.4-Khadirulla @ Ashu is the friend of accused No.1 and also the circumstantial witness. He turned hostile to the prosecution case.
v. PW.5-Jayaram is the friend of PWs.3 and 4. He turned hostile to the prosecution case.
vi. PW.6-M.R.Raghu is the cousin brother of Divya. He deposed that he dropped the deceased Divya to the house of accused No.1 on his motor cycle after the Gowri festival.
vii. PW.7-Prakesh is one more cousin brother of PW.1. He deposed that when he met Divya at Holalkere, she informed that she is not happy and she has no peace since her husband was torturing her to bring dowry. After one month, he came to know about the incident and he went to Katrala river and the accused showed the gunny bag and he identified the photo as per Ex.P10.
viii. PW.8-Gayithramma is the relative of the deceased. She informed that the deceased Divya informed her 18 about the harassment meted out by accused No.1 to bring Rs.1,80,000/-.
ix. PW.9-Shivappa is also the relative of deceased. He deposed about handing over of accused No.1 to the police after lodging the missing complaint.
x. PW.10-Vijayamma is the neighbour of PW.1. She deposed about the marriage solemnized between the deceased and accused No.1.
xi. PW.11-Manjunath is the witness for the inquest panchanama-Ex.P11. He deposed about the mahazar drawn on the bank of the river and accused No.1 showed the gunny bag and the dead body was inside the gunny bag.
xii. PW.12-Naveen is also the another pancha witness for the inquest mahazar-Ex.P11.
xiii. PW.13-Manjunath is the younger brother of PW.1. He also deposed about the harassment meted out by the accused to the deceased for demand of dowry and the seizure of the dead body as per the voluntary statement of accused No.1 under mahazar-Ex.P11.
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xiv. PW.14-Jayappa is also a witness for recover of the dead body under Ex.P11-mahazar and he identified the photos as per Exs.P2 and P3.
xv. PW.15-Mansur Ahammed is a witness for Ex.P18- Mahazar. He identified the photos of accused No.1 in the police station as per Exs.P14 to P17.
xvi. PW.16-Sundresh is a witness for Ex.P19-mahazar. He identified MO.1 to MO.13 i.e., the clothes and the gold ornaments of the deceased in the police station.
xvii. PW.17-Eshwarappa identified the photos which are taken in the car belongs to accused No.1.
xviii. PW.18-Manjunath and PW.19-Jagalurappa are the panch witnesses for Ex.P23-seizure mahazar of the jewels and the photographs of the same are produced and marked as per to Exs.P24 to P27. However, these witnesses stated that police have not seized the jewels in front of them.
xix. PW.20-Nagaraja-the neighbour of PW.1 is the witness to Ex.P14 i.e., seizure of the mobile-MO.14 belongs to 20 PW.2 and the SMS sent by accused No.1 from the mobile of deceased.
xx. PW.21-Kiran is a witness for Ex.P23 that is the recovery of the jewels.
xxi. PW.22-Nagaraju is the friend of accused No.1 and the owner of car bearing registration No.KA-16-B-7688 in which, the accused allegedly took the deceased and committed the murder and thereafter, thrown the dead body to the river. He identified the seizure mahazar of the car as per Ex.P22.
xxii. PW.23-Ramesh is the owner of the provisional store from where accused No.1 purchased the gunny bag. However, this witness not fully supported the case of prosecution.
xxiii. PW.24-Dr.Nagaraj, working in District Hospital, Chitradurga, conducted the post mortem over the dead body on 29.10.2015 and according to him, the death is due to strangulation and he issued the report as per Ex.P33 i.e., the Post mortem report, Ex.P34 FSL report, Ex.P35 Pathology 21 report. According to him, ligature marks were present on the dead body.
xxiv. PW.25-Hanumanthappa is the Branch Manager of Manipura Gold Finance where the accused pledged the gold ornaments of the deceased after committing the murder and the same was recovered under the mahazar-Ex.P36.
xxv. PW.26-Annapurnamma, the wife of PW.1, reiterated the version of PW.1.
xxvi. PW.27-Manjula, the ASI of District Town Police, Chitradurga received missing complaint lodged by accused No.1 on 23.09.2015 as per Ex.P39 and registered the case in Crime No.419/2015 and subsequently, she apprehended accused No.2 on 30.10.2015.
xxvii. PW.28-Vijiya Kumar is the pancha witness for Ex.P13 mahazar i.e., the recovery of the dead body at the instance of accused No.1.
xxviii. PW.29-Nagaraju is the CPI of Chitradurga Rural Police. He conducted the investigation partially by recording the voluntary statement of the accused and also obtained the 22 call register of the mobile phone of accused No.1 as per Ex.P46 and he laid the charge sheet against the accused.
xxix. PW.30-Mohan Kumar.T.M, the PSI of Nayakanahatti Police Station recorded the voluntary
statement of accused No.1 as per Ex.P47. Thereafter, he sent requisition to the learned Magistrate to permit to insert Section 498(A), 302 and 201 of IPC in Crime No.419/2015 i.e., the missing complaint lodged by the accused.
xxx. PW.31-Ravi Kumar is the Head Constable who transmitted the FIR Crime No.419/2015 to the learned Magistrate.
xxxi. PW.32-N. Satish, the PSI of Chitradurga Rural Police, received FIR in Crime No.419/2015 and handed over the documents to the Investigation Officer i.e., PW.29.
xxxii. PW.33-Sanna Thammapayya Odeyar is the Police Inspector of Chitradurga town police, who partially investigated the case between 29.10.2015 to 01.12.2015 by recovering the dead body of the deceased. Based on the voluntary statement of accused No.1, they drew mahazar- 23 Ex.P13, also seized the car, jewels and mobile phone of the accused.
15. A careful perusal of the evidence of above witnesses, though the case totally rests on circumstantial evidence, as far as the death of the deceased is concerned, to prove the same as homicidal one, the prosecution relied the evidence of PW.24-Dr.Nagaraj and the post mortem report at Ex.P33 wherein, the doctor, after examination of the dead body, opined that the death is due to strangulation. Though the said aspect was disputed by the learned counsel for the accused that since the hyoid bone and thyroid bone were dislocated, the doctor cannot opined that the death is due to strangulation without examining the hyoid bone and the thyroid bone. But the doctor being the expert and who conducted the autopsy over the dead body, his evidence cannot be doubted when there is sufficient corroboration of the evidence of witnesses PW.1, PW.2, PW.8, PW.9 and PW.10. Admittedly, the dead body was recovered after one month from the date of incident, there is every possibility of dislocation of the thyroid bone and hyoid bone. The said opinion of the doctor-PW.24 coupled with the histopathology 24 reports-Ex.P35. After those reports, the doctor gave the opinion even by conducting the post mortem over the dead body. The evidence of doctor PW.24 coupled with the evidence of the witnesses i.e., PW.11-Manjunath and PW.12- Naveen and also CW.19-Jyothi-the wife of Manjunath clearly goes to show that the dead body of the deceased was tied in a gunny bag and the said gunny bag shown by accused No.1 on 29.10.2015 near the tank bund of Katrala river was recovered. PW.11 and PW.12 also clearly deposed that they have witnessed the mahazar-Ex.P11 i.e., the inquest mahazar and found the dead body inside the gunny bag and later, the same was removed from the gunny bag and the police drawn the mahazar. Hence, an inference can be drawn that the dead body was found inside the gunny bag, the death must be homicidal one and after commission of the murder only, the dead body was put inside the gunny bag and tied thereafter. As such, by perusal of the doctor evidence i.e., PW.24 coupled with the report as per Ex.P33 i.e., the opinion in respect of the death and also the contents of Ex.P11 coupled with the evidence of PW.11 and PW.12 who are the pancha witnesses for the same, it is clear that the dead body was partially 25 decomposed. As such, the opinion of the doctor in the post mortem report is that the neck bones were shifted due to decomposition of the body. Further, the doctor, who conducted the post mortem, clearly opined that on examination those ligature marks were found in the neck part and the ligature materials are made up pink coloured nylon material with blue and pink coloured border with knot present and measuring 141 cm x 94 cm in length and breath. On twisting a ligature materials it corresponds to that ligature marks. He opined that the complete ligature mark encircling the neck measuring 33 cm x 3 cm which is situated 6 cm from the chin and 6 cm below the right ear lobule and 6 cm from the left ear lobule and 5 cm from the nape of neck are found on the dead body. Therefore, it can be concluded that the prosecution proved the homicidal death of the deceased beyond reasonable doubt. Hence, the prosecution proved the homicidal death of the deceased beyond reasonable doubt.
16. The next aspect arises for our consideration is whether the appellant/accused No.1 is responsible for the homicidal death of the deceased?
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17. By careful perusal of the evidence adduced by the prosecution, it is not in dispute that the deceased is none other than the wife of accused No.1 and they were residing together before her death. It is the case of the prosecution that there was a dispute in their martial relationship since accused No.1 was demanding dowry of Rs.1,80,000/- from the parents of the deceased. Though PW.1, PW.2 and PW.6 deposed to that effect, they are the hearsay witnesses for the same. According to them the deceased visited their house on the eve of Ganesh festival and at that time, she informed them about the harassment meted out by her husband. however, these witnesses have not stated the exact date when the deceased came to their house and informed about the harassment meted out by her husband. The proximity between the last meeting of the deceased with PW.1 and her family members and her death is not clearly established by the evidence of PW.1 and PW.2. Though PW.6-cousin brother of the deceased deposed that after Gowri festival, he left the deceased to the house of accused No.1 on his Motor Bike, but in his cross-examination, he stated that he do not know whether Divya is dead and also when he left the Divya to the 27 house of accused No.1. He also stated that the Divya had good relation with accused No.1. Admittedly, there is not such complaint lodged either by the deceased or by her parents in respect of the alleged harassment meted out by accused No.1 to the deceased before her death. In such circumstance, in our considered opinion, the prosecution failed to prove beyond reasonable doubt the strained relationship between accused No.1 and the deceased in respect of dowry demand. Mere making some vague allegation against accused No.1 by the family members itself cannot be termed as harassment within the purview of Section 498(A) of IPC.
18. The next aspect of the matter is that, in this case, accused No.1 himself lodged the complaint before the police as per Ex.P66 on 23.09.2015 in the evening hours alleging that his wife was missing from Chitradurga town private bus stand. Based on the said complaint, the respondent police registered the FIR for 'man missing' in Crime No.419/2015 dated 23.09.2015. Learned Additional SPP vehemently argued that the accused No.1 instead of making any effort to search his wife, he himself sent the SMS to PW.2-younger sister of the deceased. The said conduct of accused No.1 itself shows 28 that he had such intention to mislead the investigation officers and also the family members after committing the murder of his own wife. But on careful perusal of the evidence of PW.1, PW.7 and PW.9, these witnesses categorically deposed that they themselves caught hold accused No.1 from his house and taken him to the police station. Thereafter, the police arrested him and based on his voluntary statement, implicated him in the alleged crime. As far as the missing complaint lodged by accused No.1 is concerned, the police did not made any attempt either to search the deceased or to enquiry accused No.1 to that effect to test the veracity of the said complaint lodged by him. As far as SMS sent by accused No.1 to PW.2 i.e., the younger sister of the deceased is concerned, though the police alleged that in order to mislead the investigation, accused No.1 sent the SMS from the mobile of the deceased to PW.2 but in the same time, the police failed to produced any such documents i.e., purchase receipt of the mobile to substantiate the aspect that the said mobile i.e., Mo.14 was belongs to the deceased or to accused No.1. In such circumstances, adverse inference cannot be drawn to 29 accused No.1 merely based on the oral evidence of PW.1 and PW.2.
19. Learned Additional SPP, vehemently, contended that the prosecution proved the fact during the course of investigation, accused No.1 voluntarily stated that he committed the murder of his wife Divya and thrown the dead body at Katrala river. Subsequently, accused No.1 taken the police, PW.1, PW.2, PW.8 to PW.11 and PW.13 near Katrala tank bund and on 29.10.2015 at about 3.30 p.m. to 5.00 p.m., in the presence of the witnesses i.e., PW.11, PW.12 and CW.19 along with police officials, the mahazar was drawn as per Ex.P13 on the Katrala tank bund in the presence of PW.14-Jayappa and PW.28-Vijayakumar. The Investigating Officer-PW.33 seized the gunny bag containing the dead body of the deceased. Thereafter, the inquest mahazar was conducted in the said spot as per Ex.P11 and PW.11- Manjunath and PW.12-Naveen were present at that place. Accordingly, CW.19-the Tahasildar was also present at that point of time apart form the police officers. After drawing the inquest mahazar, one more mahazar was drawn as per Ex.P18 i.e., on 30.10.2015 at about 8:30 a.m. i.e., a place of 30 cart track leading towards Janakonda form National Highway- 13 Chitradurga-Holalkere road by the side of agricultural land owned by one Shinappa, where the accused killed his wife by throttling her neck and then he bought the dead body to Katrala tank bridge where he threw the body packed in a gunny bag to the tank bund. But, on careful perusal of the evidence of PW.8, he categorically admitted in his evidence that he came to know through some body that accused No.1 has pointed out the body in the tank bund road. As such, this witness is a hearsay witness. PW.11, who is a witness for inquest panchanamma as per Ex.P11, admitted in his evidence that at 12.00 noon, he came to know the news regarding the body in the tank bund and at 3.00 p.m., he came to the tank bund and as such, the said witness also not fully supported the case of the prosecution. PW.12-one more witness for the inquest panchanamma deposed that he does not know the contents of Ex.P11. Further, by careful perusal of the spot sketch as per Exs.P42 and P43 drawn by Assistant Engineer, clearly depicts that the dead body was found on the tank bund of Katrala river. The said place was visible from the bridge on the Katrala river since the said place is an open 31 area accesable to the public. In such circumstance, inference cannot be drawn that accused No.1 alone known the said place and it was only within his special knowledge as contemplated under the provision of 106 of Indian Evidence Act. When the recovery was in an open place, which is accesable to the public, cannot be termed as the same is well within the special knowledge of accused No.1 alone. It is settled position of law that the scope of Section 27 of Evidence Act is very limited and the recovery has to be proved within the ambit of Section. 27 of the Evidence Act. More over, accused No.1 lodged a missing complaint as per Ex.P66 at the earliest point of time and the police did not made any attempt to investigate in respect of the same and the dead body was found in the open place after lapse of several days in a decomposed condition. In such circumstances, the recovery of the dead body at the instance of accused No.1 i.e., based on his voluntary statement cannot be termed as a major circumstance against him since, he himself lodged the complaint about the missing of his wife. As such, the said circumstances cannot be hold against accused No.1 32
20. As far as the motive aspect is concerned, though the prosecution relied the evidence of PW.1, PW.2, PW.7, PW.9 and PW.10 that the accused was torturing the deceased in the matrimonial home and insisting her to bring Rs.1,80,000/- either paid or promised to be paid by PW.1 to one Suresh but as discussed supra, by perusal of the evidence of PW.1, PW.2, PW.7, PW.9 and PW.10, these witnesses have not stated the exact date when the deceased came to their house and informed about the harassment meted out by her husband. The proximity between the last meeting of the deceased with PW.1 and her family members and her death is not clearly established by the evidence of PW.1 and PW.2. Though PW.6-cousin brother of the deceased deposed that after Gowri festival, he left the deceased to the house of accused No.1 on his Motor Bike, but in his cross-examination, he stated that he do not know whether Divya is dead and also when he left the Divya to the house of accused No.1. He also stated that the Divya had good relation with accused No.1. Admittedly, there is not such complaint lodged either by the deceased or by her parents in respect of the alleged harassment meted out by accused No.1 to her before her 33 death. In such circumstance, in our considered opinion, the prosecution failed to prove motive for the alleged offence beyond all reasonable doubt. Further, by perusal of the evidence of above witnesses, there are much contradictions, inconsistency or embellishment are forth coming and that definitely damage the prosecution case as held in the catena of judgment by the Honble Apex Court including the case of Tomaso Bruno and another vs. State of Uttar Pradesh reported in (2015) 7 SCC 178.
21. Learned Additional SPP also contended that the evidence of PW.21 depicts that accused No.1 borrowed the loan amount from Manipuram Finance Limited, Chitradurga branch by pledging 4 gold ornaments i.e., totally weighing 12.01 grams. Then on 31.10.2015, he repaid the loan amount with interest and recollected the pledged gold ornaments. According to him, he handed over the gold ornaments to accused No.1 and to that effect, the photographs were produced at Ex.P28 and he identified accused No.1 in the police station. But on perusal of his cross-examination, this witness deposed that the police inspector asked him to give jewels which were on the table of Inspector and on the 34 instruction of inspector, he gave them to the persons pointed out by the police i.e., accused No.1. Further, as far as PW.18 and PW.19, who are the pancha witness for Ex.P23 i.e., seizure mahazar of jewels, have not supported the case of the prosecution and they categorically deposed that the police have not seized the jewels in front of them and the police took their signature without informing them. As such, the seizure of gold jewels at the instance of accused No.1 also not proved beyond reasonable doubt by the prosecution. As such identification of those gold jewels by the family members i.e., PW.1 and PW.2, much evidentiary value cannot be attached.
22. As far as, the purchase of gunny bag is concerned though PW.23 totally turned hostile and failed to identify accused No.1. In such circumstances, the prosecution failed to prove one more circumstance/chain link of the circumstances to connect accused No.1 in crime.
23. In such circumstances, the Hon'ble Apex Court in the Narendra Singh and another vs. State of MP reported in (2004) 10 SCC 699 held that the suspicion however grave may be, cannot take place of a proof. It is equally well settled 35 that there is a long distance between "may be" and "must be". Hence, it is well known that the case based on circumstantial evidence, piece of circumstances, however, strong may be, it is well know that all the links in the chain must be proved. In the case on hand, some of the vital circumstances like last seen theory, the purchase of the gunny bag by accused No.1, the recovery of the gold ornaments at the instance of accused No.1 and also motive for the alleged incident for the commission of the crime have not been proved by the prosecution.
24. By careful perusal of evidence of PW.1, PW.2, PW.7, PW.9 and PW.10, there are much contradictions, omission and embellishment in their evidence. In such circumstances, the Hon'ble Apex Court in the case of State of Uttar Pradesh vs. Preetam and others reported in (2011) 11 SCC 286 held that while appreciating the evidence in a criminal trial, the contradictions, inconsistencies, exaggerations or embellishments found in the evidence of material witness that benefit of doubt has to be extended to the accused.
36
25. The Hon'ble Apex Court in the case of Shankar vs. State of Maharashtra reported in 2023 SCC OnLine SC 268, by referring the cases of Sarbir Singh v. State of Punjab reported in (1973) 2 SCC 793 and Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116, held in paragraphs 5, 6 and 8 as under:
"5. In the decision in Sarbir Singh v. State of Punjab, this Court observed and held thus:--
"5. ...But in a case based on circumstantial evidence neither the accused nor the manner of occurrence is known to the persons connected with the victim. The first information report is lodged only disclosing the offence, leaving to the investigating agency to find out the offender.
6. It is said that men lie but circumstances do not. Under the circumstances prevailing in the society today, it is not true in many cases. Sometimes the circumstances which are sought to be proved against the accused for purpose of establishing the charge are planted by the elements hostile to the accused who find out witnesses to fill up the gaps in the chain of circumstances. In countries having sophisticated modes of investigation, every trace left behind by the culprit can be followed and pursued immediately. Unfortunately it is not available in many parts of this country. That is why courts have insisted (i) the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established; (ii) all the facts so established should be consistent only with the hypothesis of the guilty of the accused and should be 37 such as to exclude every hypothesis but the one sought to be proved; (iii) the circumstances should be of a conclusive nature; and (iv) the chain of evidence should not have any reasonable ground for a conclusion consistent with the innocence of the accused.
6. Further it was held therein as under:--
7. ...It has been impressed that suspicion and conjecture should not take the place of legal proof. It is true that the chain of events proved by the prosecution must show that within all human probability the offence has been committed by the accused, but the court is expected to consider the total cumulative effect of all the proved facts along with the motive suggested by the prosecution which induced the accused to follow a particular path. The existence of a motive is often an enlightening factor in a process of presumptive reasoning in cases depending on circumstantial evidence.
8. In the decision in Prakash v. State of Rajasthan, this Court took note of the following principles laid down regarding the law relating circumstantial evidence in Sharad Birdhichand Sarda v. State of Maharashtra:--
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' 38 established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the following observations were made:
19. ..."Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
26. Hence, as per the dictum laid down by the Honble Apex Court in the above cited judgments, by considering the 39 facts and circumstances of the case on hand, in our considered view the prosecution failed to proved the guilt of the accused beyond reasonable doubt. The golden rule that runs through the web of criminal jurisprudence is that presumption of innocence is a human right and based on the evidence, if two views are possible, the view which favours the accused should be upheld. Our view is fortified by the judgment rendered in Narendra Singh's case stated supra.
27. In such circumstances, we are of the considered opinion that the prosecution failed to the prove the guilt of accused No.1 beyond all reasonable doubt. As such the conviction held against accused No.1 is liable to be set aside.
28. Accordingly, we answer the points raised for consideration and proceed to pass the following:
ORDER i. The appeal preferred by the appellant/accused No.1 under Section 374 (2) of Cr.P.C. is hereby allowed.
ii. The judgment of conviction and order of sentence passed in S.C.No.26/2016 dated 08.12.2016 by the 1st Additional District and 40 Sessions Judge, Chitradurga is hereby set aside.
iii. The appellant/accused No.1 is hereby acquitted of the charges levelled against him. iv. The appellant/accused No.1 is directed to be set at liberty forthwith, if he is not required in any other case.
v. The bail bond executed by the appellant stands cancelled and the fine amount, if any deposited, before the trial Court, the same shall be refunded to him on proper identification.
Sd/-
JUDGE Sd/-
JUDGE VM