Karnataka High Court
State By Rural Police Shimoga vs R Muniyappa @ Munna on 16 February, 2009
Bench: Manjula Chellur, B.Sreenivase Gowda
IN THE HIGH mask? 01? KARNATAKA AT *
DATE!) THIS THE 16 my QF"'FEBl?_fL31$i§':;,l ;;2iii3§'.k
PRESEN'fV__
THE HONBLE MRS. MM!-JL'1,§§_; CRELLBR
THE HONBLE MR. J{iSTii3E2.j_B. EISIIVASE GOWDA
Crimi:1a3Vi£bfiéa1VP€Q;_2'51 ¢;i*VV%2<302
Between: :
Statse by V
_ .... _ '«1.;___ _ _ " " Apprszllant
{By Siji. G. Bifgfgvarii SPF)"
An& ..a ,_U
R. Mumyappa@;ammg@ M11nnanaJ'ka
@ 171i.MuHiYa, "
. ' -s0iz- {Sf years,
» Carpcnt«::rT,~.f<*;'(; Mission Nagar,
z'%.11dra§1a11i, II Stage,
.~ . A Respondent.
(By B.',{'. Indushckar, Adv.) AA ' (Lind 3113} Appeal filed under Section 3'?8{1} 85 (3)
-.Cr..1?1iC by the State prayiI1g to want leave {:0 file appeal éggairrst the judgment dated 28.8.2001 passed by the .._3~'idd1. Sessions Judge, Shiznega in S.C1. No.148/2000 acquittmg the respondent-accused for the affences 11/ S5. 302 and 26 1 IPC.
This Appeal coming on for heard 'ng,' 2tiaV.y, MANJULA CHELLUR. J. delivered the fonowirggi' ' ~ 4;; This appeal is directed ' acquittal dated 28.8.2001 1:3 N5; 1:<§3,:V2§f3_0i3{' Brief facts thatvieafd to,"LiT:iii*xg.'<3f'tiii:s-Aagzsfiveal are as Lmdfirz ._ _ The t0 the accused E¥,i_1"'3'n""n"':a1}aJ'ka @ R. Muniya a I'fiSidf_"'i]g'§i€T {if fflihikkanayakanahalii, Tumkllr Distlfict. Afigr the rixzaxifigagéz between the accused and the V' €:pIin';é;"'(i:ai1ghter 0f PW 1 Suit. Shakinabi, the ,__;t--.i'<;;;;i1'sr~9;:c_:i rasidmg at his natixfe place along with his he went in Search of his livelihood leaving wife in the company 01' his family members. deceased was not Wail, the brothers of the accused 'A her with her mother}? for the purpose of treatment. V' The accused used 11) visit his» Wife new and then at his in» laws piacc. It is the case of the prosecution that on the unfortunate night of 29.33.2000 the accuscafi company of his wife at his imiaws ' ;
intt':.IVe.I1ing night of 29.53.2000 "an<%:&'A%T3E).5;%2i:i9k:
3.00 am. PW I was i11foxV'»1:i:a:§€1..%»byA'fi_i1:: the» deceased committed vS31zv1fiCidt3,,~'}Ll;i3Il1';E:ii1_i;&1t(§3fi)Q' ' 'hiS='£I10th€:1'-«ill-
law PW 1 anal sistt-3;' $ sister of deceased C3136': {Q dtaccaased and accused Wfxftg _;--:. amund the neck 01' leaning tawards the pillar.
O31 1ea1"ni_:ig% the df:t'12t3aS€:(i was no mare, mot};}*e3° aI1d.Vsis1;ér"'sa§d have raised hue and cry. At the. im: accused said 1:0 have fled away from the Cry attractcd tha attantion of the kith the compiaillaiztw PW 1 and alssao the H " Imighbééiirs. Neighbours have I1()tiC6d the acczused away from the door of the house of the " --. Yéémplainant.
3. On the eomplaint of the mother 2 peliee arrived at the scene of oiTenee,u'-rreeridxietegi ..;11e inquest proceedings, semi; the drew a mahamr at the spot sluéetjehvvas part of the investigation. '(if _the investigation statements of the_ki't.h a:::d. i€in"ef:the"'<ieeeaeed and so also neighbours of 2
4. {fie complaint is at Ex. P 1 whe {rune the mother of the deceased Gofime wfioxe tfie rope is identified as the one the fleck ofvifievdeeeased at the time of the death. J? Ummar who has turned hestfie to the gase fii:'eeeeufioz1. PW 3 is the neighbour of PW 1 " 'A".__W'he at the epot after hearing the sheuting of the A and saw the accused eeming out ef the hrrsuee. He aiso speaks of the rope armmd the neck of the rleeeased. PW 4 is the sister of the deceased whe said to V;"'<Z'.> have seen the deceased and the aeeused together during the night of 29.5.2000. PW 5 is one Ma}i.k.'v.e:e;i:'A--ii as flies. ease of the prosecution that PW were in the habit of visiting: his hes _1se ens.Sai;L1r§1ayl * Sunday to Watch films on the " sac of the witnesses to the xgfhiee IMO I rope was seized. i"W 6 {hie and a witness te Ex. PW 7 Ismail, fatlier ef the slut in station on the date of gene to attend the last rites of his reieiiye. _ 'ffie embed through this wimess t0 the effect t1ia't_si.1ieide by the deceased was on account but this witness has denied the same. 2 happenes $1.5 'be:"'eeusiI1 of the accused PW . 8] another sister 91" the deceased who who was residing in W h()pee"ef' PW 1. ?W 9 is cousin brother of the deceased is examined to speak about the motive for the cause fer' sass: efthe deceased. pw 10 Nagarsgja is a friend of the ' héieexlseci who said ts have seen the accused coming out of V the house of the esmpiainant. PW 11 G. Sathyanarayana \\ is the, secretary at' the panchayat was maxkcd to say that PW 1 and ,§}tI1<:ri¥."$iu*é'§2'Vfcs5idiI:g'& the pmperty where the dctceasczii d3{¢ci.'iV fig; ?§9§.R. Basavarajappa wha has stated that the 9f: and strangulation. PW 1:116: spot mahazar- Ex. P 3, he: iifesccufion. PW 14 I~i<)I11i$g0a§*ti£i_«._iVé1ffi--_V_x§%i;*;ij3ic:$;':s Vt-5 mquest report Ex. P 9 who {jag PW 3.5 Nagaraja is a neighbour whet: the ihe deceased in the house of PW
1. '§*i~3.su ppo_rts"'thé 91" the prosecution. PW 16 is a 1% fg§1i¢ei'*5c1§stg;b1e figs Carfied the FER Ex. P 10 aleng with " to the concerned mum. PW 17 is the Ccfilstable who apprehcndfld the accused and him befure the concerned ofiicer along with the ' "' IV'é'p6rt-Ex. P 11. PW 18 is amrnthcr poiice constable who """firatchcd the dead body and took the dead body ta pest \§\ mertem and after post mortcm handed over the dead body to the rciativcs and the: personal belongngs to the higher authorities under Ex P 12. PW ' 19 is the P331 who regsterfici the case as Crime No.2 10/ complaint of PW 1 as per Ex.P 1. PW hzspcctor of Police who tmk fmfiilaer é thé ' L. matter and PW 2 1 is the Police Ii1s.1:3éctt§r "
the investigation and fled shéet: W
13. After {fling of t?it3'--.§::3'}ax'-gs committal aeurt committééi ;n.§f;tér:»teVV.:t11e Sé-ésflions Court as. the matter was 3x§:--i13S«ivéi_s? flzhe Court of Semsions. The <:hargc§agaii1stji;%1e§.'~ac::fi§;€c1 in the Sessions Court ware for V' "Vth&"':§§fe£1r,es..punié;1*ié13ie under Sections 3012 and 201 IPC, d§ccase<i was strangtllated by the acC'a1§*yed_.-e§'ifi1AV.the help of a mm as she was unable to "cgnceiire,__ :a child out of the wedlock, Lh€1'{?:f{)I'€ tried to VA evidence of murder ir1to ant: €31' hanging by Gnrima % .,hr:§rs::-,1f, in the very same house, 1:1} Show the Whole wurid ' that it was a case of suicide by hangng by thfi deceased Gorima.
6. The accused pleaded not guilty Therefore the trial Court sent tbzéii1é1tt¢i=Afor' witnesses were examizlegi A. documents and one "t1_?_1<-*:-
marking portion of bag 3}; Ex. D 1.
Though the ophfion $ '.1-:2, regarding the cause of Wasé: as a result of £};$-'fgyther opinion cf the cloctogrf hanging. However the ..;' .t:;:<éi.§jt:V.»¥:§§§é:_:"a#7preciating the evidence «of the duct??? "a:}her.v"méxtéi*§a1s held it was a combinafion of V' sfiéhgfilation. Though the death was not a specific case of the prosecution is that the aC{:1;s8(i"<.1{é1firnitt6d murder of the deceased with an "'»i;f1t6nti<:sfi' to do away with her from this worlcl, as she was A u:'1ai§}1e to conceive a child and he was interested to marry V% ...S'C;IIi(i ether girl. The learned ma} Judge irxrocceded to V censider the matter far an effence punishable under Sexctien 302 IP12: and not for the other under Section '.201 IPC.
7. After considering the Shakinabi, WV 4 Sakira, isxfiail father of the deceased and 1' has coma to the co31c1usiQn the accused in thsa house on that fateful day and was tmsumessful in beytmd reasonabie doubt againsf V Agcordmgly the accusad was acqylittad of éiii cfiarges. Aggicved by the said order of 1f:;fie.VSt.ate has come up in this appeal.
8; Agcoiiiihg to the Isamed Addl. S.P.P. the evidence of Iriot-flier PW 1, we sisters PW 4 and PW 8 and anoizher T. ' 'Asistsr PW 5 would inciicate presyence of the accused in the
-»v-fiotzsc of the complairmnt smcc 4 er 5:3 days prior to 29.5.2800 and so also his presence in the company of the il entire evidence on record and come te__ ;'_'éi' ' _ conclusion than that of the cf {fie 2 settled law by the Apex Court v:1 should be slew in vaxgd * of acquittal having regard uia-.§ Court had opportunity of and conduct of the witnesses" vgfhc' He also contended arc' from the same set of facile, to the accused alone is to lee contends that even if from the san1eVVxseifi ai%k'fa.§m "1§:::ié;sibi1ity of axriving at a difierent v by fliis-.....£3ourt is there, the View of the trial net perverse has to be accepted and seeks cf the acquittal order. With reference to 'ruthe evifiience cm record he brought to our nctice the ._ \ cf mad reievant portions cf the evidence of PW 1, V' WV' 4, PW 3, PW 8 to contend that the presence of the accused in the said viilage as on the date of the incident is doubtful as the ?{II\0fi"1CI' of the deceased was always opposcd to the marriage: between the accused and the deceased. Thersfare the case of the con1p1aina :m:: her kith and kin was only to wreck vengeangé: ._.'£hje accused. Mainly based an imagination case' was iriitiated. On théifi-€ afgu1i§eIits'TT'._he::" &fii§g11i:T1.T_:f0r conflrmatioia of the acqtiittéfikaizgd . L'
10. We have gone' t':Vid{3I1C€ and so 3350 the judgmexjt of="€uc- point that would arise ifqr c<j:i:;i€ie1f}§1ti{i13..'i$:
i) _VWhcV:'i§_1é1f_V j11dg111ent ef acquittal of the triai ' ' C3n_1§1I*t'watTants interfersnce?
-V »: 'u'J1"1at order'?
11"; SO as Thf'. uzmamral daath of the deceased is V. AA<::::;1ce7i*1:3:ed, when we iwk at the evitsiencc of PW 12 the ifidication arm can gm is, it is a case ()1? throttling as well "as strangmafien. In a caste after thmttiitlg a person, if a person is strangulated definiteiy the ligature: mark and other marks of vioienoc like finger print because of use of E3 p1't3SS11I'€ of the hands en the neck are quite In View of such material, the deetor has opinr;5:i'- Case of threttiing arid aiso swangmatien. , .V ' f that it is an unnatura} death. 'I'1:'1"eV <1rt'TT'1i.,?r1_ g is that at the hands of the fi'1e_ (if V the deceased Crerima. happefied flue 12.0': throttiing and $tra:r::gu1ati0n. Tk1efef_z32*e of suicide, so far the pI'OS€_C1£tiGI1 ii; 'ThLiugh the accused p1eade,:i the jsuieide (flee to severe stomach pain by the "d.eeeasecf' "i'1*om the material on record except-éfijeiifiéeeggeetien Eeing macie to the kith and kin, no '5e:'i€}us3"~"L03'aeeeptable evidence has came on record to x deceased committed sujtzide due ta inie1erabie.VLetAomach pain. On the other hand, there is Vesriglence "to Shaw that the deceased was sufiefijlg from 'iiifixess prim" 1:0 her death and this Wee the main reason
-»w1:1§; the relatives of the husband left her in the parental heuse fer the purpose ef treatment as the accused was residing at Bangalere. The accused is a carpenter by profession. The fact remains that in the absencc __of the accused establishing 2-1 case of suicide by dacfiased the proof of ofience by the accused" : f£1é'v prosecution so far as the ofibnce 3pun.ishai§)1e i:ii{1§:f'Sais;:ti0nV ' L. 30:2 and 201 IPC. The mat¢:ia1:%%%%%%5i:
contents of Ex. P 9 inquest a1i€iat:Ex. P' ' '3 weuid estabiish it wafih fiiitaath. The questian is whaither the acciifiéd \3zés{'_r¢'spensib1c for this :13. 'M . ' ' ' ~
12. Appé:1jent13%"z1e5£1e»* witnesses of the prosecution _ art-:..:=,§y<*=: wit{1es§S' Via' the; incident in question. 'They all speak »:g};3c~11t f.:i¥11=:%111:éjs'{.i_t_.re i.e. the accuseti disciosing and declaring '.i;i1\;:§~t-.i*1é \xVf't3;11§:7£:.Viike ta take a second wife and therefore he deceased Garima to» die. Them is another §'..j1=i5Veas9n {Qzhy ht: was not happy with his wife i.e., she did ' fitgxt Hcrsncfiive a child after the marriage between the '4 §6C€3.S€d anti thfi accused. in Gfdfii' 1:-<3 accept {his motive being the causzt far the éeath of the deccasmd, when we 36
13. What is important in this Isaac is the: pf the prosecutian is based upon circums:ta'1:1;iafi_T'€:\fide:1C¢' $p<3keI1 through the. kith_an<:1
14. Then ceming to the agtual icffénfie, pmsecution 911 29.5.2008 firas at heme, PW 1 ajieng wi'i:.h.__PW' S daughter of PW 1 left the house to the houvsfg ta watch a film as it w'éL$'VT'a:'wi<;%ek haséiso came in the <-avidence 01"
these v;'7itnassc--sV, 1 that the accused was in the xriiiiagfz for 4 i'.o 5 days as it was fastjval of Ramzan ' _anii. day 3:1<*;:V1'j§£«i(ii'Vg(}Iz<: to the eldest daug11ter of W 1 It has also came: in the evidence of FW 1 that wfmnéivér aficuaed was in her house 01' during his i<}_ Vi:i1e viiiagc: she wouid net gt) out of the house A to Watch 'KEV. to see week and film. if it was .._v§it}1i11 her 1{I1OW3.€(§gC that the accused was in the village V' and gone to visit Shabu the eldest sister of the decmsed, Why she has gene 1:0 the house of PW 5 to Watflh fiim along PW 8, is not at all explained? This is normal conduct during the visits of £116.. 'to "t1"if: vijiiaga, Accorciing to hm? whet}: si"%§:4';:;I'};<i> house after having their d'i13__ner, ' "
mformed them that she gou to si$ter's housc to bring the AAt1;1xat was the informatinn gven to WV 1 did not stay back return of the acczlsfifg Gorima. This is var}? S'{.}é2iI1g E has not given proper explaluafian. '-
-..Th:é~4s:f&*:7{§iex1ce at; PW 1 and PW 8 would indicatfi that xs%hé:1'thé3é i1ef£"'i: tht: house only Gcrima and thfi accusad W6I'£Et: a~§.£"}::1(:i.'VI1':1(:- They said to have retmrxed silly at 12.00 A Cf Meanwhile PW 4 Sakira also visits her mother's piiice at afmlzt. 1G.3Qp.m. The evidence of Sakira is t0 the .4 fiifwt that prior to ?W 1 anti annther sister PW 8 retlmflng finm the house of 1%/Ialik, she Came to have food at about 10.30 p.131. and as no one
3.-§I"iGCk6d at the door, ehe pushecythe ,fiiev"ho3.:lSe. which opened anti she quietly \%?a1k:e(1..i§iE§':hei:e_:to ' have dirmer. After having dinner ehe' behind the cuI't.a§:n Where the and the deceased used to sieefif j She 5,f.,'eEt" the deceased was lying en the i3.eu:',__ Bu.i"Sixe'; wake up either the accused er fact remains: that aeeerding tci"*€;§fisVVi$zit:1e$eVV__When she {same to the house ef PW 1 thefit:-«:::i"S were' _R3€:.ked either frenl inside or from eutsitie. _ This.yvitr1esé: Cilifing the crass examination has the peiiee her visit to the heuee of 1 e§1V':'the night of 29.5.2300 at 19.35 p.m. to haxfe If such statement admittedly not 'stated .4 " " .VL hefe«qre am; police during inveetigation, her evidence before ?i;E_i::*"€f?eL1I't that she visits, her methefs place at 10.15 pm. VT "te have dixmer and eeeing the deceased lying on the floer M ii") a peculiar manner cannet be <*;0{1s.idered. At the most she must have come ten the spet ef incident 0:13}; cm the next mnrning when other family mg mmatural death of the deceased;
16. If the eviderxctt af this we have the évidencs ar;dV'AAsi%.ter of the dectzascd PW PW' 1 811131;.
Shakinabi feffi-"16 'hasi «nest: explained What cumpelied :3? Maiik against the nonnaiy %%%;ch T. V. or not to ieave the house fiié her son in law i.e., accuser}. Accor;dL1g it} hgf'5:11c"de.<:cas6d and thus accused said to i*1a§é vthe house of hm' sides: daughter Shahbu i:v.h€i__ zfssidiiig 200 yards from her hcuse and her _ anqigiiry' the: eldest daughter an the maxi: morning VV}*cv¢?=;ajs €I;1at by 10.00 pm. on the previnus night the fsicfiéiisézd and the ciecfiasecl returneé ta her house. if this j V' evidence of PW 1 were to be taken int<:: cansidexatioxz as U disciosed by WV 14 than hm" statement; that when she ret.uI'm:d from the heuse of PW 5 at 12.00 Inidnighi: she tricd 1:9 pesp through the curtaiil and 4_ lyillg on the floor in a strange Invmiimsi hctlifivécd. 9 j According to PW 1 thifi aCC"LiS¢':{1 m:1«. turrling his back towards the~v.§%:3cas€§du . the house the deer wrag. nof£h'i€>x::..1;s:t'§?1VVV"'i*7|Tf3tB3 'iéI1s'idsr:".VE The flrst {int}: of this iady ané if any stranger had entaerad h2eI'e kapt openfid.
She éifi HQ ' did not even suspect any to peep through the {:11rt,aihhtg;fis "she and son in iaw is not 1:133 ncamska}. xc01'fciuV{;t"<3f parent. if she were to notice . . of daughttil." she coulé have aiertad her hw hat sleep pmperly. But :~3i:range1y this iady. kept -§#;1Aiet. She: again. names gut with 3 $ta.teJ:{1e:m: midnight she heard very' strange sound from the':-: @1396 where the deceased and her son~i31~1aw were "'S»iE€piI]g. But she thought: that it may he only the noise of a cat. At 3.00 am. when her s0n~in--1aW woke her up} She naticed the tmnatural dtiath ef her daughter. She said to have scan the deceased leaning towards around her neck. Her evidence: I-Wiiia-if} i§f1di_g:~aite'._fj:1at[.' Sh-c ' had genuine: reason to raise hue: aizgi asfgthe V' same foui play at that mags;
knew that the her husband from the houhh hf she goes to the house of PW of the hmlsc were nut V1101: suspect any foul play. curtain and notices heir daL;ig',hi:t§r grhund in a strangc marmer, she: di<:i_ not4"ss1V$peC't and kept quiet. When she 3 V' snangéh hijiéé in the midnight stjl} she kept quiet anything. All this W0,-uid only indicate fl1at,».._i1o:1a TV those incidents were noticed by her and '~__ $hc has; her daughter being dead only in the merrxing _;':'2u.3f1(1-._x_a§%;it11 a strong suspicion against the accused she the compliant against him.
Another impartant ~ "vhwitness in this cast: for the prosecution would be Mrs. / Shabu the eldest daughter of t_he complajlmnt. She aione would have been able to say whether the 1:0 tbs: house at' the WV 1 a}0ng...w_i_';h {Sr alime returned to the house. if t§E 1 e~ lfiéuse were 110:, iocked either ~.§;1:t¥si'<i%__ DIV' powsibility of any arm th§:_AAheE11s¢ cannot be ruled out. Even 4 02311110: be a correborafivfi giicfit eviéencc 0f the prosecutiegm did retunu to» the the house of Shabu at a "find the evidence. af either pw 4 er PW Sxtliat V.Vé1t__ or 12.00 midnight they pecped the secs: the accused and the deceased If ?W 8 and PW 1 had suspicion agaii:1s1;_ i.'};£:_ ziccused war; 3 minute or miner material or pec1iii. $r:. condxict or irmident would aicrt them to check was happening. in spite cf noticing very strange and V. fmcufiar things, none of the kith am} kin including the mother of the; deccascd were caut:i011s e11o1:1gl1 to pmbe furthfir. This wauld only indicate that they did not know 23 any thing during that night and they were ef the death of the deceased dtlriilgmthat: V. cvidenca 0f the Witnesses w0u}d:=.,rcv{s:a1f1'th.:a,t. ~.at- 7" ; ii1 the momimg on 30.5.2O{)0V'jVp:)§icc <;.afi's<::V % ofienca no complaint came on 30.5.2000. The exp1:a&1.$Vé;£io1§+L was Waiting for the arfival sf herv--hu$bax1d..- i'1§;31__iiic arrived at the spot they 'i1$t}é7s:.tigati0n and wouid not waéit to arrive and lodge a comp1a1n::,_ ' %%Hox,;;eg%:;%;,%A '''complaint is iedged by the mcthfir Vz1€xV1;_ tfié féather of the (iectased. All these indicate that because of SOIH6 against the accused they had strong _ susf;:i.cic_i'1' {ha acts {If the accused involving 1:1 the H H " Junt.<§wa_fx'i.. iracident which laltixnately restlited in the death _' <if 1:Ii?1<§ deceased Gorima. However strong the smspicion of VT V' camp-laixlant and athcrs, it cannot take the place of A procaf. Suspiciun however strong, remains a suspicion and not proof of a fact. in the absence of the prosecution 24 establishing the charges with the relevant to prove the charges aginst the accused doubt especially in a case of cirC}3;}1>sta;11t:'{:a'1"
$i;roI1g suspicion wiil aiso not assist the: .;)ros~¢€:24ti9i1:i£3Aéx:1y 1333131161'. Nuns of the circufimfances 21371:': e $ia_b}ishcd in . L' this case. Under th€:$(':__(2iI'(11}I1}1:SV3iLi:-'.I'_i{3rf:3E'», we is no perversity" in the fi:1ci3:*1g' T -of L.t1§€j. 1éa:néé_ trial Judge in ccnciudilag tha§':_*?he iittfiriy faiied to estabiish t§1cTAé:ié_z3r;gés% the acctised. Accordingly»fipi1fi€«ft§"1at. the appeal desenres to be dismissed alid ._$t2mds'Ciisi11issed. Sd/-
Tudge Sd/-it Judge