Karnataka High Court
Smt. Ratnavva W/O Dyamanna Byalal vs The State Of Karnataka on 25 September, 2020
Bench: B.M.Shyam Prasad, V.Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRL.A.NO.100372/2017 C/W. CRL.A.NO.100018/2018
IN CRL.A NO.100372/2017
BETWEEN:
DHARAPPA S/O. IRAPPA ABBAR
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: TADKOD VILLAGE,
TQ & DIST: DHARWAD.
... APPELLANT
(BY SRI : RAKESH S. HATTIKATAGI, ADV.
SRI. SANTOSH S. HATTIKATAGI, ADV.)
AND:
THE STATE OF KARNATAKA
BY GARAG POLICE STATION,
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. SPP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 (2) OF CR.P.C., SEEKING TO ADMIT THE APPEAL AND
CALL FOR THE RECORDS AND TO SET ASIDE THE
2
JUDGEMENT AND ORDER OF CONVICTION DATED
12.10.2017 PASSED BY THE PRL. DISTRICT AND
SESSIONS JUDGE, DHARWAD IN S.C.NO. 4 OF 2017 FOR
THE OFFENCES PUNISHABLE UNDER SECTION 302, 201
READ WITH 34 OF IPC AND FURTHER BE PLEASED TO
ACQUIT THE APPELLANT OF ALL THE CHARGES
LEVELLED AGAINST HIM.
IN CRL.A.NO.100018/2018
BETWEEN:
SMT. RATNAVVA W/O DYAMANNA BYALAL
AGE: 35 YEARS, OCC: COOLIE,
R/O: MUMMAGATTI VILLAGE,
TQ & DIST: DAHRWAD.
... APPELLANT
(BY SRI : BASAVARAJ S. SATANNAVAR, ADV.)
AND:
THE STATE OF KARNATAKA
REP. THORUGH GARAG POLICE STATION,
NOW REP. BY ITS SPP,
HIGHH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
... RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., SEEKING TO CALL FOR RECORDS IN
S.C.NO.4/2017 ON THE FILE OF THE PRL.DISTRICT AND
SESSIONS JUDGE, DHARWAD AND TO SET ASIDE THE
JUDGMENT/ORDER DATED 12.10.2017 MADE IN
S.C.NO.4/2017 PASSED BY THE PRL.DISTRICT AND
SESSIONS JUDGE, DHARWAD IN SO FAR AS IT RELATES
TO CONVICTING THE ACCUSED/APPELLANT NO.1 FOR
3
THE OFFENCE PUNISHABLE UNDER SECTION 302, 201
READ WITH 34 OF IPC AS THE SAME BEING ERRONEOUS
AND NOT SUSTAINABLE IN LAW AND ACQUIT THE
ACCUSED/APPELLANT NO. 1 HEREIN FOR THE OFFENCE
LEVELED AGAINST HER PUNISHABLE UNDER SECTION
302, 201 READ WITH 34 OF IPC.
RESERVED FOR JUDGMENT ON : 02.09.2020
JUDGMENT PRONOUNCED ON : 25.09.2020
THESE APPEALS ARE HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, V.
SRISHANANDA, J., DELIVERED THE FOLLOWING :
JUDGMENT
Crl.A. No.100372/2017 is filed by the accused No.2 and Crl.A.No.100018/2018 is filed by accused No.1. in Sessions Case No.4/2017 challenging judgment dated 12.10.2017 on the file of Principal District and Sessions Judge, Dharwad, (for short 'the Sessions Court'), wherein the Sessions Court has convicted the accused Nos.1 and 2 for the offences punishable under Section 302 and 201 r/w 34 of Indian Penal Code.
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2. The case of prosecution in brief for the disposal of these appeals is as follows:
2.1 PW1 Dhulappa S/o. Kareppa Abbar, resident of Tadkod village, filed a complaint before the PSI of Garag Police station on 11.08.2016 at 6.30 p.m. contending that he has two sons viz., Santhosh and Anand. Santosh is working in Marco-Polo Company whereas Anand was working in Southern Ferro Company Belur since 3 years prior to the filing of the complaint. In workplace Anand developed intimacy with accused No.1 Ratnavva who was deserted by her husband; Anand started to reside with accused No.1 and used to visit complainant often. It is further contended that complainant and his family members advised Anand to give up the job at Southern Ferros. Thereafter Anand started attending the work under accused No.2 a building contractor who is also the relative of the complainant.
Anand had purchased a motor cycle bearing No.KA- 25/EK-0335. It is further contended that despite giving 5 up the job in Southern Ferros, Anand was regularly visiting the house of accused No.1. Whenever questioned by the complainant and his family members, he used to give them evasive reply stating that he had gone to some other place in search of a mason.
2.2 It is further contended that Anand came to the house of the complainant on 8-8-2016 in the night hours and on the next day morning he took bath and went on his motorcycle stating that he is going to attend his routine work. It is further contended that on 11.8.2016 in the morning hours, when the complainant was in his house, he received information that his son Anand is dead and the dead body was kept in district hospital mortuary. Immediately the complainant and his villagers went to the district hospital mortuary and saw the dead body of Anand. On enquiry the complainant came to know that accused Nos.1 and 2 had brought Anand to the hospital.
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2.3 On seeing the dead body, the complainant noticed swelling and blood clot in left eye; White froth had in nostrils and both hands turned black. Therefore, he lodged complaint to police on 11-8-2016 at 6.30 p.m. stating that Anand is murdered in the intervening night of 9-8-2016 and 10-8-2016.
2.4 PSI Sangappa-PW13 received the complaint and registered the case in Cr.No.142/2016 for the offences under Section 302, 201 r/w 34 IPC and set the criminal law in motion. Thereafter he handed over the investigation to PW14 Prashant Naik.
2.5 On 11/8/2016 at 7.30 p.m. PW14 visited the government hospital Dharwad along with panch witnesses and conducted inquest mahazar as per Ex.P5. He sent the dead body for post mortem examination and formed a team to nab the accused.
2.6 On 12-8-2016 he visited the scene of offence along with panch witnesses and conducted the spot mahazar as per Ex.P6 in between 9 a.m. and 10 a.m. He 7 seized the motorcycle MO9 from the spot; drew rough sketch of scene of offence as per Ex.P7 and recorded the statements of available witnesses. He seized the clothes and articles (MO Nos.1 to 8) worn by deceased at the time of the incident under mahazar (Ex.P9). On the same day he visited Tadkol village and recorded the statements of Mallavva Uppar and Santosh Uppar. Thereafter he arrested accused No.1 and recorded her voluntary statement. Pursuant to voluntary statement mahazar as per Ex.P10 was conducted and photo was snapped as per Ex.P11; he also arrested accused No.2 and interrogated him and recorded voluntary statement. On 14/09/2016 he collected post mortem report as per Ex.P13. On 20/10/2016 he received the letter from the Panchayat as per Ex.P16 and on 9/11/2016 he received the FSL report as per Ex.P16 and final opinion as to cause of death from doctor as per Ex.P13. After completion of the investigation, he filed the charge sheet against the appellants.
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3. The learned jurisdictional Magistrate upon receipt of charge sheet secured the presence of the respondents and committed the case for trial to the Principal District & Sessions Judge, Dharwad.
4. The Sessions Court after hearing the prosecution and the respondents, has framed charge against the accused persons-respondents for the offences punishable under Section 302 and 201 r/w 34 of IPC. The respondents, when the charge was read over, pleaded not guilty and claimed to be tried.
5. The prosecution to prove the case against the respondents examined 14 witnesses as P.W.1 to P.W.14.
• P.W.1: Dhulappa Kareppa Abbar is the complainant and the father of the deceased. He lodged the complaint as per Ex.P.1.
• P.W.2 : Shamappa Kallappa Asundi, he is panchanama witness to Ex.P6.
• P.W.3: Sri.J.N. Yaragamblimath, who is pancha witness to seizure mahazar Ex.P9. 9 • P.W.4: Sri. Irasangappa Ishwarappa Humbi, who is a panch witness to the spot mahazar (Ex.P.10).
• P.W.5: Sri. Kamalavva W/o. Dhulappa Abbar, who is the mother of deceased Anand.
• P.W.6: Sri. Santosh Dhulappa Abbar, who is brother of the deceased Anand and elder son of the complainant.
• P.W.7: Sri Ningappa Rayappa Kotabagi, who is the owner of accused No.1. He knows the deceased, who used to visit the house of accused No.1.
• P.W.8: Sri Gangavva W/o. Ningappa Kotabagi, is the wife of PW7.
• P.W.9 Sri Dr. B.B. Makandar, who is Doctor having clinic at Basaveshwar nagar, Mammigatti. He knows PW8 and 9.
• P.W.10: Sri Bahubali Arjun Kotabagi, is resident of Basaveshwar nagar, Mammigatti and neighbour of PW7.
10• P.W.11: Nagappa Lingappa Kotabagi, is the son of PW7 and 8.
• P.W.12: Dr. Vishwanath Ramappa Pidagannavar, is working as Medical Officer in Primary Health Centre, Kotur Taluk, Dharwad District.
• P.W.13: Sri Sangappa Basappa Palbhavi is working as PSI of Garag Police Station. • P.W.14: Sri Prashant Suresh Naik is working as CPI who investigated the case.
6. The prosecution has relied upon 17 documents as Exs.P.1 to P.17, which includes the complaint (Ex.P.1) lodged by father of the deceased, Photos (Ex.P2 and 3, 8), Photo of the vehicle (Ex.P4), Inquest mahazar (Ex.P.5), spot mahazar (Ex.P6), Scene of offence mahazar (Ex.P7), seizure mahazar (Ex.P.9), spot mahazar (Ex.P10), Photo (Ex.P11), FIR (Ex.P12), P.M. Report (Ex.P13), Medical certificates (Ex.P14 and 15), FSL report (Ex.P16), House property extract (Ex.P17). 11
7. The defence has got marked certain portions of the statement made in the complaint as Ex.D.1. The accused have denied all incriminatory materials put to them while recording their statement under Section 313 of Cr.P.C. They have not led any defence evidence.
8. Sessions court after hearing the parties and perusing the records has convicted the appellants for the offences punishable under sections 302, 201 read with section 34 of Indian penal code.
9. It is that judgement which is impugned in these appeals.
10. Learned counsel for the appellant in Crl.A.No.100372/2017 contended that Sessions Court committed an error in convicting the appellant based on interested, contradictory unreliable and artificial evidence. He further contended that the appellant is physical handicapped person and therefore, it is not possible for him to commit the murder of deceased. He further argued that prosecution is not able to prove any 12 circumstances whatsoever to convict the present appellant in the case and trial court has wrongly relied on the alleged voluntary statement. He further argued that last seen theory is not properly proved and thus, the judgment which is impugned in the appeal is erroneous and sought for allowing the appeal.
11. Adopting the above arguments counsel for appellant in Crl.A.No.100018/2018, further contended that prosecution has miserably failed to establish that there was a illicit relationship between appellant and deceased. He further contended that deceased sustained injuries in a road traffic accident and took shelter in the house of appellant and he was healthy when she left for a day's work and as such, there was nexus between death of deceased and appellant. He further contended that none of the circumstances were proved by placing cogent and convincing evidence on record by the prosecution and judgment of the Sessions Court is suffering from serious legal infirmities.
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12. He further argued that even though there is no evidence on record, Sessions Court convicted the appellant based on surmises and conjunctures and prayed for allowing the appeal.
13. Per contra, learned Additional State Public Prosecutor supported the impugned judgment. He argued that none of the prosecution witnesses possessed any enmity or animosity against the appellants and as such, their testimony cannot be doubted. He further argued that the prosecution is able to prove all the circumstances by placing proper evidence on record and as such, conviction is to be maintained. He further argued that there is no explanation forthcoming from appellants as to why dead body of Anand was found in the house of accused No.1 and therefore, prosecution case is believed by the Sessions Court and hence, prayed for dismissal of the appeal.
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14. In view of the rival contentions urged by the parties, the following point that would arise for our consideration is:
1. Whether the finding of the Sessions Court that accused persons are culpable for the homicidal death of Anand is suffering from legal infirmities or perversity and thus calls for interference?
15. We answer above point in the negative for the following :
REASONS
16. Complainant is PW1. He reiterated the complaint averments. He further deposed that he came to know that deceased was creating problems for accused Nos.1 and 2 under the influence of liquor and as such, they have murdered his son. He identified the motorcycle on which the deceased had visited the house of accused 15 No.1. He deposed about his participation in inquest mahazar. He identified accused No.1 and 2 before court and also deposed that accused No.2 also had illicit relationship with accused No.1, as such, they have murdered his son. He also identified the clothes and articles found on the dead body, which were marked as MO1 to 7.
17. In cross examination on behalf of accused No.1, he answered that the deceased was working in Steel factory and later he was indulged in contract work. It is further elicited that he has not personally acquainted with accused No.1, but the deceased had relationship with accused No.1. He answered that about a year earlier to the date of incident; the deceased was working in Steel factory and later he was doing contract work. He has specifically answered that his son Anand used to reside along with accused No.1 in Mammigatti village. He has answered that he had repeatedly advised the deceased to give up the illicit relationship with accused No.1. He 16 admits that deceased was consuming liquor. He denied having given false evidence.
18. In cross examination on behalf of accused No.2, he admits that he had not seen accused No.2 and accused No.1 together. He denied that there is no nexus between accused No.1 and death of his son.
19. PW2 is witness to spot mahazar-Ex.P6 whereunder motorbike of deceased was seized. He supported the case of prosecution. In his cross examination, no useful materials are elicited.
20. PW3 is Jagadishwarayya, who participated in seizure of clothes and other articles found on the dead body under Ex.P9 mahazar. He supported the case of prosecution. This witness was not cross examined by the prosecution.
21. Irasangappa is examined as PW4. He is the witness for Ex.P10-mahazar. He deposed that on 12.08.2016 about 5.00 p.m. he was secured to the house 17 at Mammigatti. Accused No.1 who was in the custody of the Police shown the place and Police verified the said place and drew mahazar vide Ex.P8 and took the photograph vide Ex.P11. In cross examination on behalf of accused No.1, he admits that one Arjun Kotabagi was also present at the time of mahazar and his house is situated about 400 meters from the place of incident. He denied having given false evidence.
22. Kamalavva - mother of the deceased is PW5. She deposed in line with the examination chief of PW1. In cross examination by defence, she admits that she had no personal knowledge about the incident. She denied having given false evidence.
23. Santosh- elder brother of the deceased is PW6. He also deposed that line with the examination chief of PW1. In cross examination by the defence, he has answered that he did not visit the place where the 18 deceased was working and denied having given false evidence.
24. Ningappa-PW7 is owner of the house (place of incident) deposed that he has a house at Basaveshwaranagar, Mammigatti village. He has constructed some rooms and let out to the tenants including accused No.1. He further deposed about deceased often visiting house of accused No.1 and death of Anand. He further deposed that day before the death of Anand at about 9.00 p.m. after finishing his dinner he had gone to the bed and heard a sound from the house of accused No.1, but he did not bestow attention to it. Next day morning accused No.1 had been to work and returned around 6.00 or 7.00 p.m. and heard the loud scream raised by accused No.1. Pursuant to said scream, his wife visited there; accused No.1 intimated his wife that Anand is not waking up and sought for medical help. As such his wife secured the local doctor Makandar. Doctor on examination of Anand informed that Anand 19 was no more and thereafter he came to know that accused No.1 took dead body to District Hospital and later he came to know that accused persons have murdered Anand.
25. In his cross examination, he answered that he had constructed three rooms each in ground and first floor of his house which were let out to tenants. He denied that doctor-Makandar was not at all secured by his wife and he has given false evidence. He has answered that he has not seen personally Anand visiting the house of Ratnavva earlier to his death. In cross examination on behalf of accused No.2, he answered that he cannot say when accused No.2 visited the house of accused No.1. He denied the suggestion that accused No.2 never visited accused No.1.
26. Wife of PW7 is Gangavva, who is examined as PW8. She deposed in line with the examination chief of PW7 and also securing the presence of Makandar and 20 Makandar declaring the death of deceased. She identified the accused persons before the court.
27. In her cross examination, it is elicited that she has not enquired about who are all visiting the house of accused No.1. She denied the suggestion that she did not secure doctor and deposed falsely. In cross examination on behalf of accused No.2, she has specifically answered that she has seen accused No.2 visiting the house of accused No.1, but she cannot give the date and time of accused No.2 visiting accused No.1.
28. Doctor - B.Makandar is examined as PW9. He deposed about his visit to place of incident at about 6.30 p.m on 10.08.2016 at the request of PW8 and examining one person and declared him as dead. In cross examination, he denied suggestion that he did not visit the place of incident and deposing falsely.
29. PW10-Bahubali is neighbor of PW7. He deposed that he had seen accused No.2 visiting the house 21 of accused No.1 often. He specifically deposed that on 10.08.2016 at about 5.30 a.m. he saw accused No.2 going out of the house of accused No.1, but he did not speak to him. He identified accused No.2 before the court.
30. In cross examination, it is elicited that he is working in TATA Itachi factory and his office timing is morning 8.00 to 5.00 p.m., and he is neighbor of PW7. It is further elicited that deceased was visiting accused No.1 twice in a week since about one year earlier to death. He further answered that accused No.1 had told him and others that deceased was her younger brother. But, he never spoke to the deceased. He denied having given false evidence.
31. In cross examination on behalf of accused No2, he answered that he did not observe the color of dress worn by accused No.2 going out of house of 22 accused No.1 as it was early morning at 5.00. He denied having given false evidence.
32. Nagappa is son of PW7 and 8, is examined as PW11. He deposed that he was acquainted with deceased, who was visiting the house of accused No.1 often on a motorcycle. He further deposed that accused No.1 had introduced the deceased as her younger brother. He further deposed that accused No.2 was also visiting accused No.1 often. He further stated that about a year earlier at 10.00 p.m. deceased visited the house of accused No.1 on his motorcycle and he went to sleep. He heard a sound from the house of accused No.1, but he did not go there. He noticed that next day evening as usual when accused No.1 returned from her work she sought the help of his mother to secure the presence of doctor and accordingly, she secured doctor Makandar who declared that Anand was no more. Later on, Anand was shifted to Dharwad hospital and he came to know that accused Nos.1 and 2 have murdered him. 23
33. In cross examination on behalf of accused No.1, he has answered that he did not visit the house of accused No.1 on 09.08.2016 even after they heard sound from the house of accused No.1. He answered that next day morning also he did not enquire accused No.1. He denied having given false evidence.
34. Autopsy surgeon is PW12. He deposed about conducting post mortem examination and issuing report vide Ex.P13 and final report vide Ex.P14. He estimated time since death as more than 36 hours. The injuries noted by him during post mortem examination are :
1. Abraded contusion measuring 1X ½ c.m. present over outer aspect of left eye situated 0.5 c.m. outer contusion cantus of left eye.
2. Abraded contusion measuring ½ X ½ c.m. present over outer aspect of left eye situated 0.5 c.m. outer to injury No.1.
35. In cross examination, PW12 admits that if somebody falls on the hard surface under the influence of alcohol, injuries noted by in Ex.P13 may be sustained. 24
36. Sangappa Falabavi -PSI is examined as PW13. He deposed about receipt of Ex.P1 on 11.08.2016 and registering the case in Crime No.142/2016 and apprehending accused no. 1 on 12.08.2016 and accused No.2 on 14.08.2016. In cross examination, he denied having given a false evidence.
37. Further Investigating Officer is PW14. He deposed about his visit on 11.08.2016 to District hospital, Dharwad; conducting inquest mahazar (Ex.P5); visit to place of incident on 12.08.2016 conducting spot mahazar (Ex.P6) seizure of motorcycle-MO9; drew rough sketch(Ex.P7); recording statement of charge sheet witnesses; conducting cloth seizure mahazar; arrest of accused persons; recording voluntary statement; of accused persons and collection of reports and filing charge sheet.
38. In cross examination on behalf of accused No.1, he denied there is no nexus between accused and 25 death of Anand. He answered that during investigation he came to know that accused No.2 had accompanied accused No.1 in Ambulance when Anand's dead body was shifted from the house of accused No.1 to the hospital. He denied having concocted mahazars and statement of charge sheet witnesses. In cross examination on behalf of accused No.2, he denied that he has been falsely implicated.
39. On careful scrutiny of the entire material on record and finding recorded by the Sessions court that Anand died a homicidal death is well founded. Sessions Court relied on the oral testimony of doctor who conducted Autopsy and gave post mortem report vide Ex.P13.
40. The injuries mentioned in the post mortem report, referred supra were sufficient enough to take away the life of the deceased as per specific opinion of the doctor. However, in cross examination, PW12 admits a 26 suggestion that injury noted by him can also be caused, if somebody falls on a motorcycle and met with road accident, he volunteers to say, in such an event there injury will be caused on other parts of the body. Version of first accused about the death of Anand is that he met with road traffic accident under the influence of liquor and took shelter in the house of first accused and ultimately he succumbed to injuries sustained by him road traffic accident.
41. In cross examination on behalf of accused Nos.1 and 2, the doctor in his evidence has given two different versions insofar as a presence of traces of alcohol. But, that itself is not sufficient to say that Anand took shelter in the house of accused No.1. after he met with road traffic accident. Seizure of MO9 under Ex.P7 spot mahazar by the Police, which was parked in front of the house of accused No.1 amply proves that Anand came on motorcycle and parked it, reached the house of accused No.1, which is situated in the first floor. 27 It is highly unimaginable that if a person having sustained serious injuries as is noted in the post mortem report, can ride the motorcycle, park it properly and climb steps and reach first floor. Moreover, if at all Anand had sustained in a road accident as is canvassed by the defence, what prevented to accused No.1 in not admitting the deceased to the hospital for treatment on 09.08.2016 itself, is not forthcoming on record.
42. It is highly unimaginable that if a person sustained injuries in a road accident, would be kept in the house without any treatment for the whole day. The inquest mahazar, post mortem report coupled with the oral testimony of doctor is sufficient enough to establish Anand died a homicidal death. Therefore we do not have any hesitation in maintaining the finding of sessions court that Anand died a homicidal death. 28
43. The next question is whether accused persons are responsible for a homicidal death. The case of the prosecution is based on circumstantial evidence. On perusal of material on record, case of prosecution rests on following circumstances:
Accused No.1 was a tenant under PW7 and the deceased and accused No.2 were often visiting the house of accused No.1.
Deceased was last seen entering the house of accused No.1 by PW11 and none else have seen deceased alive thereafter.
Deceased was shifted to District hospital by accused No.1 and 2.
44. It is an admitted fact that accused No.1 was tenant under PW7 in one of the rooms constructed by PW7 on the first floor of his house (place of incident).29
PW7, 8, 10 and PW11 have stated that Anand was frequently visiting the place of incident and Accused No.1 had introduced Anand as her younger brother. They also deposed that accused No.2 was visiting house of accused No.1. PW10 has seen accused No.2 going out of house accused No.1 on 10.8.2006 at about 5.00 to 5.30 a.m. It is pertinent to note that PW.7, 8, 10 and 11 did not possess any enmity or animosity against accused persons to depose falsely against them. They withstood detailed cross examination and no materials are elicited in cross examination to doubt their testimony. Therefore, first circumstance stands proved.
45. In regard to second circumstance, PW11 testified that at about 10.00 p.m. Anand visited the house of accused No.1 on his motorcycle. He also heard a loud sound of accused No.1, since it is night, he did not bestow his attention. Thereafter next evening doctor Makandar visited the place of incident and declared Anand's death. None else has seen Anand coming out of 30 house of first accused. There is no cross examination by the defence as to the fact of Anand reaching house of accused No.1 on 09.08.2016 after 10.00 p.m. and after so reaching the house of accused No.1, there is no evidence that Anand has been seen alive thereafter. Thus, prosecution is successful in establishing the fact that Anand when he was alive, was last seen by PW11 and thereafter only his dead body was taken out from the house of accused No.1 in ambulance and shifted to the District hospital, Dharwad.
46. In regard to next circumstance, PW9 after declared the death of Anand, Accused No.1 shifted the dead body of Anand to the District hospital. This is not denied by the defence. Visiting of accused No.2 to the house of accused No.1 on the date of incident and seizure of motorcycle of Anand parked in the road in front the house of accused No.1.
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47. As per the deposition of PW1, Anand had illicit relationship with accused No.1 and despite repeated advise, he had continued to visit accused No.1. Accused No.2 who was the contractor with whom deceased was working, also started to visit accused No.1 often as is deposed by PW7 owner of the house of accused No.1 and PW10- the neighbour of PW7.
48. It is now well settled that a conviction can be on the basis of placed on the circumstantial evidence. In Hanumant and Ors. vs. State of Madhya Pradesh, reported in AIR 1952 SC 343, it is observed as under:
"10. .....It is well to remember that in cases where theevidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every 32 hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused...." .
49. In Bhodaraj v. State of Jammu and Kashmir reported in 2002 (8) SCC 45. Hon'ble Apex court has held as under:
"10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan [(1977) 2 SCC 99 : 1977 SCC (Cri) 250 : AIR 1977 SC 1063] , Eradu v. State of Hyderabad [AIR 1956 SC 316 : 1956 Cri LJ 559] , Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447 :
AIR 1983 SC 446] , State of U.P. v.33
Sukhbasi [1985 Supp SCC 79 : 1985 SCC (Cri) 387 : AIR 1985 SC 1224] , Balwinder Singh v. State of Punjab [(1987) 1 SCC 1 :
1987 SCC (Cri) 27 : AIR 1987 SC 350] and Ashok Kumar Chatterjee v. State of M.P. [1989 Supp (1) SCC 560 : 1989 SCC (Cri) 566 : AIR 1989 SC 1890] ) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab [AIR 1954 SC 621 : 1954 Cri LJ 1645] it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. [(1996) 10 SCC 193 : 1996 SCC (Cri) 1205] wherein it has been observed thus: (SCC pp. 206-
07, para 21) 34 "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
12. In Padala Veera Reddy v. State of A.P. [1989 Supp (2) SCC 706 : 1991 SCC (Cri) 407 : AIR 1990 SC 79] it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape 35 from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
13. In State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86 : 1992 SCC (Cri) 241 : 1992 Cri LJ 1104] it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
14. Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must 36 be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] . Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove 37 that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(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 38 probability the act must have been done by the accused."
50. Similar is the view taken by Hon'ble Apex Court in the case of Santosh Kumar Singh v. State, (2010) 9 SCC 747 popularly known as Priyadarshini Mattu's case.
51. Applying the legal principles enunciated in the aforesaid decisions to the facts of the case on hand as discussed supra, we find that prosecution has established the circumstances narrated above with cogent evidence.
52. How the deceased sustained injuries as is noted in the post mortem report, is to be explained by accused No.1, as admittedly, Anand's dead body was found in the house of accused No.1. Defence theory is that Anand sustained injuries in a road traffic accident and took shelter with accused No.1. No plausible or possible evidence placed on record in this regard by the 39 defence, except suggesting to prosecution witnesses that Anand sustained injuries in road traffic accident. Prosecutions witness denied such suggestions. While holding that Anand died a homicidal death, we have discussed supra how defence theory is fallacious. Therefore, the said explanation sought to be offered by the defence, is a false explanation. Accused No.2 visiting the house of accused No.1 is also proved by the oral testimony of PW10, who is specifically deposed that on 10.08.2016 he has seen accused No.2 going out of the house of accused No.1 at about 5.30 a.m. It is pertinent to note that none of the prosecution witnesses had any previous enmity or animosity against the accused Nos.1 and 2 to depose falsely against them. According to the prosecution, there was a quarrel between deceased and accused No.2 in respect of accused No.1, which ultimately resulted in accused Nos.1 and 2 assaulting deceased Anand and taking away his life and thereafter 40 shifted the dead body to the District hospital and left from their without informing anybody.
53. It is only after the hospital authorities intimated the Police; the Police visited the District hospital and then informed PW1 about the incident.
54. Pursuant to voluntary statement recorded after arrest of accused No.1 by PW14, Police conducted the spot mahazar, wherein accused No.1 has shown the place where the deceased was done to death. The place that shown by the accused No.1, did tally with the spot mahazar conducted by PW14 vide Ex.P10 on 12.08.2016.
55. Thus, offering a false explanation can be treated as additional circumstances which will strengthen the chain of circumstance to prosecution case and act can be utilize as additional link in the chain of circumstance.
56. In view of foregoing discussion, we are of the considered opinion that the prosecution has successfully 41 established circumstances referred to supra with cogent and convincing evidence on record.
57. Once the prosecution established its case with postive evidence on record, the appellants were obliged to offer some explanation to the incriminatory materials found in the evidence of prosecution while recording their statement under Section 313 Cr.P.C. It is for the accused persons to explain how the death of Anand has taken place in the house of accused No.1. But except denying all incriminatory circumstances appellants did not offer any explanation. Accused No.2 did not say that he is stranger to deceased or accused no.1. So also, accused no.1 did not say that accused no.2 is stranger to her. No suggestions are also put to prosecution witnesses in cross examination in this regard.
58. Further, Section 106 of the Indian Evidence Act, 1872 deals with shifting the onus of proving a particular fact on the accused or when that particular 42 fact is especially within his knowledge. This section is an exception to section 101 of the Evidence Act and its applicability does not relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.
59. For ready reference said section is culled out hereunder which reads:
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations:43
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him."
60. We would gainfully rely on the judgment of Hon'ble Apex Court in the case of Jamnadas v. State of M.P., (2016) 13 SCC 12, wherein it held as under:
19. We have considered the above submissions in the light of evidence on the record, and the law laid down by this Court applicable to such cases.
Undoubtedly, it is a case of circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : 1984 SCC (Cri) 487] , a three-Judge Bench of this Court has laid down the law as to when in a case of circumstantial evidence charge can be said to have been established. Five points enumerated in said case are summarised as under: (SCC p. 185, para 153)
(i) The circumstances from which the conclusion of guilt is drawn should be fully established. The accused must be, and not merely may be guilty, 44 before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions;
(ii) 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;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) 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.
20. On behalf of the appellants, it is submitted that the accused has a right to silence and no adverse inference can be drawn from his silence as to the cause of death of the deceased. In this connection, reliance is placed on para 141 of Selvi v. State of Karnataka [Selvi v. State of Karnataka, (2010) 7 45 SCC 263 : (2010) 3 SCC (Cri) 1] , which reads as under: (SCC p. 337, para 141) "141. At this juncture, it must be reiterated that Indian law incorporates the "rule against adverse inferences from silence" which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and proviso (b) of Section 315(1) CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial Judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence. This rule was lucidly explained in the English case of Woolmington v. Director of Public Prosecutions [Woolmington v. Director of Public Prosecutions, 1935 AC 462 : 1935 All ER Rep 1 (HL)] , AC at p. 481:
'The "right to silence" is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to 46 respond to questions put to him by the police or by the Court.'"
Above observations are made by this Court in an answer to the legal question raised in the batch of criminal appeals relating to the involuntary administration of certain scientific techniques, namely, narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. In the present case facts and circumstances are different. The above referred case, in our opinion, is of little help to the appellants in the present case.
21. In State of W.B. v. Mir Mohammad Omar [State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382 : 2000 SCC (Cri) 1516] , this Court, while interpreting the burden of extent of proof on prosecution, observed as under: (SCC pp. 392 & 393, paras 31 & 36-37) "31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to 47 burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
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36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows:
'106. Burden of proving fact especially within knowledge.-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.'
37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."
22. Shri S.K. Jain, learned Senior Counsel, on behalf of the appellants drew our attention to 48 Tomaso Bruno v. State of U.P. [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] , and argued that to invoke Section 106 of the Evidence Act the prosecution must have proved presence of the appellants in their house at the time of the incident. We have carefully gone through the case cited before us. It was a case where CCTV footage of the hotel was available but not produced to show the presence of the accused in the hotel and, as such, the plea of alibi that the accused had gone to witness "Subah-e-Banaras" from the hotel was accepted. The present case relates to a different kind of incident where a bride has been brutally murdered inside the house and her body, after cutting into pieces, was thrown in the park.
23. In Trimukh Maroti Kirkan v. State of Maharashtra [Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] , which is a case similar in nature to the present one, this Court has held as under: (SCC pp. 690-91, para 15) "15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of 49 the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
61. Again, in Tulshiram Sahadu Suryawanshi and Ors. vs. State of Maharashtra, reported in (2012) 10 SCC 373, the Hon'ble Apex Court observed as under :
"23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position.50
The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar "38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish 51 certain facts which are particularly within the knowledge of the accused.
In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus:
'11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. Onthe contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge."
62. Applying the legal principles enunciated in the above decisions to the case on hand, we notice that after the prosecution has established all the circumstances with cogent evidence; hence onus shifted on the appellants to explain the circumstances and the manner in which the deceased met a homicidal 52 death in the place of incident as said fact was in their exclusive knowledge.
63. Thus, from the above discussion, we are of the considered opinion that the prosecution has successfully established the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion that of the accused No.1 is the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused.
64. In view of the foregoing discussions, we are of the considered opinion that the appellants have not made out any grounds whatsoever much less good grounds to interfere with the finding of the Sessions Court that accused persons are responsible for a homicidal death of deceased Anand. Thus, we find no merit in the appeal. Accordingly, we pass the following:
53
ORDER The appeals are merit less and hereby dismissed.
Accused No.2 is on bail, is ordered to surrender before the court forthwith.
Bail bond, if any, stands discharged.
Sd/-
JUDGE Sd/-
JUDGE MNS/