Bangalore District Court
State By vs Mohan @ N. Mohan Rao on 23 March, 2022
KABC010229302012
Presented on : 03-12-2012
Registered on : 03-12-2012
Decided on : 23-03-2022
Duration : 20 days 3 months 9 years
IN THE COURT OF THE LXV ADDITIONAL CITY
CIVIL & SESSIONS JUDGE, BENGALURU (CCH-66)
PRESENT
SRI. SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 23 rd day of March, 2022
S.C.No.1524/2012
COMPLAINANT:- STATE BY
Police Inspector,
Vijayanagara Police Station,
Bengaluru.
(Rep. by Public Prosecutor)
- Vs -
ACCUSED:- MOHAN @ N. MOHAN RAO,
S/o. Late Nagaraj Rao,
Aged about 30 years,
R/at No.32, 2nd Cross, 4th Main Road,
Govindarajanagara, Vijayanagar,
Bengaluru.
(By Sri. B.N.R., Advocate)
Date of Commencement of 06.07.2012
offences
2 S.C.No.1524/2012
Date of report of offences 06.07.2012
Name of complainant Smt.Leelamma.
Date of recording of 08.12.2014
evidence
Date of closing of evidence 02.09.2021
Offence complained of U/s. 302 of IPC.
Opinion of the judge Acquittal.
JUDGMENT
Charge-sheeted by Vijayanagara Police, committed by I Additional Chief Metropolitan Magistrate Court, Bengaluru, the accused facing trial before this Court for the offence punishable under Section 302 of IPC.
2. The prosecution case in brief is that.-
The accused is the husband of deceased Manjula, the accused was an alcoholic, he was not looking after the family properly and he was doubting the character of his wife deceased Manjula, and he had developed suspicion about her chastity. Due to this, on 06.07.2012, in the morning at about 2 hours while deceased Manjual was in deep sleep, accused tied the neck of the deceased by using thread MO.2 and strangulated her and also smothered her by putting a pillow on the face of the deceased and murdered her. He had taken away the gold ornaments from the body of the deceased. With regard to this incident, PW.1 Smt.Neelamma lodged complaint as per Ex.P.1 and set the criminal law into motion. The Station House Officer, Vijayanagara Police Station received the 3 S.C.No.1524/2012 complaint as per Ex.P1 and registered Crime No.484/2012 for the offence punishable under Section 302 of IPC. Thereafter the investigation is held and charge sheet is submitted before the I Additional Chief Metropolitan Magistrate Court, Bengaluru for the offence punishable under Section 302 of IPC. The Magistrate took cognizance of the offence and committed the same for trial. After committal, the case has been made over to this Court for disposal in accordance with law.
3. The accused is on bail and he has engaged counsel for his choice. The accused and his counsel were heard at the stage of hearing before the charge. Since there was prima facie material against the accused, benefit of Section 227 Cr.P.C., was not given to the accused. Thereafter, charge for the offence punishable under Section 302 of IPC was framed and read over to the accused. The accused has denied the charges levelled against him and claimed to be tried. Thereafter, the case was posted for trial.
4. The prosecution in all has examined 19 witnesses as PW.1 to PW.19 and exhibited documents at Ex.P1 to Ex.P16. M.O.1 to 7 are identified. After examining these witnesses the prosecution has closed its side. After conclusion of the trail, the statement of the accused under Section 313 of Cr.P.C., was recorded. The accused denied the incriminating circumstances appearing against him and he has produced statement in writing. The accused has stated, in his written statement that on the night of 05.07.2012 his wife did not turn up to home till 7.30 p.m., so he took his children to his mother's house and stayed over there at that night. He went to his 4 S.C.No.1524/2012 house on the next day morning on 06.07.2012, he saw through the window that his wife was hanging to the cealing fan with duppatta around her neck. Immediately, he called his brother Prasad, who came to the spot and informed his mother-in-law and others over phone. Then, out of fear, he and his brother went to the police station. The Police detained him there and he was with the Police till he was produced before the Court.
5. I have heard both sides. On perusal of the entire oral and documentary evidence and considering the points of arguments, the following points that arise for my consideration are:-
1. Whether the prosecution proves beyond reasonable doubt that the accused with an intention to murder his wife deceased Manjula and with the knowledge that by his act, he is going to cause her death, strangulated her with MO.2 thread, consequently, the deceased died, thereby the accused has committed the offence of murder punishable under Section 302 of IPC?
2. What Order?
6. My answer to the above points are:-
Point No.1:- In the Negative,
Point No.2:- As per the final order,
for the following:
REASONS
7. Point No.1 :- The argument of the learned Public Prosecutor is that the prosecution has placed sufficient materials to bring home the guilt of the accused. The oral and 5 S.C.No.1524/2012 documentary evidence produced by the prosecution are sufficient to find the accused guilty. He has further stated that the accused has failed to explain the circumstances that are established against him. With these submissions, he prays to convict the accused.
8. The argument of the learned counsel for the defence is that the prosecution has failed to prove that deceased Manjula died a homicidal death. The evidence putforth by the prosecution itself shows that the death of deceased was due to hanging. The prosecution has failed to establish the circumstances. The oral and documentary evidence placed by the prosecution are not sufficient to hold that the accused is guilty. By reading the deposition, he has submitted that the oral and documentary evidence are not at all sufficient to hold the accused guilty of the offences. With this submission, he prays to acquit the accused.
9. On considering the materials available on record and the points of argument, it appears that the entire prosecution case rests on the circumstantial evidence. Since the case of the prosecution rests on the circumstantial evidence, it is necessary to mention, at this juncture, the principles that are to be borne in mind, while deciding the case solely rests on the circumstantial evidence. In the case Bodhraj V. State of J & K, reported in (2002) 8 SCC 45 , the Hon'ble Apex Court with regard to proof of offence by circumstantial evidence has held that:
'for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances 6 S.C.No.1524/2012 be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
10. Further, at para 10 of the judgment the Hon'ble Court has held that.-
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 persons. 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.
11. Further, in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116, the Hon'ble Apex Court laid down that, the conditions precedent in the words of this court, before conviction could be based on circumstantial evidence, must be fully established. They are:
1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances 7 S.C.No.1524/2012 concerned 'must' or 'should' and not 'may be' established.
2. the facts so established should be consistent only with the hypothesis of guilt and 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.
12. Bearing this settled principles of law in mind, I would like to mention as to what are the circumstances the prosecution has relied upon. According to the prosecution, the following are the major circumstances on which its case rests.
i. Motive
ii. Subsequent abscondence of the accused
iii. Recovery of the incriminating articles on the
disclosure made by the accused.
iv. Homicidal Death
13. To appreciate the evidence in the background of the points urged by both sides, it is necessary to refer to the evidence given by each witness. PW.1 Smt. Neelamma is the mother of deceased Manjula. She has stated that the marriage 8 S.C.No.1524/2012 of her daughter deceased Manjula with accused had taken place about 10 years back. The accused was an alcoholic and he was not bringing grocery to home. Hence, her daughter Manjula was working as home maid in three houses and she was also bearing the educational expenses of her children and also bearing the expenses of the home. It is her further evidence that, since her daughter was working as home maid, the accused was doubting her character and frequently he was quarreling with her. She has further stated that about 15 days back, her daughter had come to her home along with her children and husband. However, the accused assaulted her and took her back to his home. Thereafter, the brother of the accused called her over phone and informed that her daughter is dead. When she went to her daughter's house immediately, she noticed that dead body of her daughter was lying on the bed and blood was oozing from nose and mouth. The neck portion was turned black and she gave complaint to the Police as per Ex.P.1. After receipt of the complaint, the Police came to the spot and prepared Ex.P.2 Panchanama and recovered MO.1 Pillow. Thereafter, the Police sent the dead body to the Victoria Hospital. She has further stated that she came to know from Police that the accused killed her daughter by putting pillow to her nose and strangulated her with charger wire.
14. PW.2 Sri.Prasad is the brother-in-law of the deceased and son-in-law of PW.1 Neelamma. He has stated about receiving information about the death of deceased Manjula and visiting her house at 9.00 p.m. in the night. Thereafter, in the next morning, they went to Victoria Hospital.
9 S.C.No.1524/2012There in his presence, the Police prepared inquest panchanama.
15. PW.3 Smt. Geetha, sister of deceased Manjula has also stated that the accused was not taking care of his family. Since six months, the accused was harassing her sister, since her sister Manjula was working in home, he was doubting her character and he was also physically assaulting her. About 20 days back, her sister Manjual had come to her home along with children and she had told about the conduct of her husband. She has stated that she has consoled and assured her that she would come to Bengaluru in the next week. She has further stated about receiving information of death of Manjual from her mother, she came to know that the accused has killed her sister Manjual and has absconded.
16. PW.4 Sri.Venkatappa, who is the owner of the house, in which, the accused and deceased were residing. He has stated that, the accused and deceased were residing in his house on rental basis from 1999, on monthly rent of Rs.800/- and with an advance amount of Rs.8,000/-. He has stated that prior to the incident, the accused and deceased Manjula were living happily. When he had gone to ask for rent, Manjual had told that her husband has not gone for work and further told that, she would give rent after two days. About four years back, he had gone for work. He received a phone call from Vijayanagara Police Station. The Police told him over phone that Manjual has committed suicide by hanging. Immediately, he went to the house. He noticed that, front door of his house 10 S.C.No.1524/2012 was broken. When he was saw through Window Manjual was hanging to ceiling fan.
17. PW.5 Smt.Rathnamma, mother of the accused was examined to establish the theory that the accused had taken gold ornaments from the body of the deceased and gave it to her. This witness has turned hostile to the case of the prosecution.
18. PW.6 Sri.R.Vishwanath has been examined to prove Ex.P.8 Recovery Panchanama, under which MO.2 thread has been recovered. This witness has also turned hostile to the prosecution case.
19. PW.7 Sri.Pradeep is the panch witness to Ex.P.2 Spot Panchanama. He has stated about participating in the panchanama proceedings as per Ex.P.2. He has further stated that Ex.P.2 is prepared in the house of deceased Manjula. Under the said panchanama, the Police have recovered MO.1 Pillow.
20. PW.8 Sri.Kumar is another Panch Witness to Ex.P.2 Spot Panchanama. He has also stated about participating in the Panchanama proceedings as per Ex.P.2. Both PWs.7 and 8 have stated that they have seen the dead body, blood was oozing from the mouth of the dead body of the deceased.
21. PW.9 Sri.Krishna Murthy N is another Panch witness to Ex.P.8 Seizure Mahazar. He has stated that about four years back, while he was going near Vijayanagar Police 11 S.C.No.1524/2012 Station at about 3.00 p.m., the Police secured him to the Police Station. At that time, the accused Mohan Kumar was in the custody of the Police and he has stated that the accused is known to him. He has further stated that the accused took himself, PW.6 Vishwanath and CW.14 Javeed Pasha, to a open site at Nagarabhavi and took thread from the bushes of the land and gave it to the Police saying that from this he has strangulated her. Thereafter, the Police have recovered the same under Ex.P.8 in his presence and he has put his signature.
22. PW.10 Sri. Narasimha Bhattacharya, Station House Officer has stated about receiving of the statement from PW.1 and registering Crime No.484/2012 as per Ex.P.10.
23. PW.11 Sri.Puttaraju, H.C.5121, has stated stated about taking the dead body to the Victoria Hospital. After conducting the post mortem, he handed over the dead body to the relative of the deceased and received the acknowledgement. Thereafter, on 12.07.2012 as per the order of CW.27 he has produced post mortem report and four articles from the hospital before the Investigation Officer.
24. PW.12 Sri.G.Somashekar, H.C.7312, has stated about submitting FIR to the Magistrate on 06.07.2012 in the evening at about 5.30 p.m.
25. PW.13 Sri.B.K.Srinivas Murthy, H.C.5724 has stated about apprehending the accused and produced him before the Police. He has stated that on 07.07.2012, the PSI deputed himself and CW.23 to apprehend the accused in this 12 S.C.No.1524/2012 case. Accordingly, they were in patrolling duty. At about 1.00 p.m., the informants shown him the accused near Satellite Bus Stop and they surrounded the accused and apprehended him and produced before PSI.
26. PW.14 Sri.L.Krishna is the neighbour of the deceased and accused. He has cited as eye witness to the incident, has turned hostile to the prosecution.
27. PW.15 Sri.B.U.Pradeep has deposed about conducting spot panchanama as per Ex.P.2 and recovery of MO.1 Pillow from the place of where death was found.
28. PW.16 Sri.C.S.Siddalingaiah has deposed about conducting portion of the investigation. He has stated that, CW.27 and CW.23 have apprehended the accused and produced the accused before him. Thereafter, he has arrested him and recorded the voluntarily statement. On the basis of the voluntarily statement, he has recovered the golden ornaments from the mother of the accused as per MO.7. Thereafter, he has recorded the statement of six witnesses.
29. PW.17 Sri.Chandrashekar P has stated about conducting part of the investigation and he has stated about recovery of MO.2 thread at the instance of the accused and recording the statement of witnesses.
30. PW.18 Sri.E.B.Sridhar has stated about receiving report from FSL and submitting the charge sheet.
13 S.C.No.1524/201231. PW.19 Dr.Garudadri has deposed about conducting post mortem report over the dead body of deceased Manjula and issuing Ex.P.14.
32. This is the ocular evidence of the prosecution witnesses. Now, I will proceed to discuss each and every circumstances in detail to ascertain whether the prosecution has proved the circumstances beyond reasonable doubt.
i) MOTIVE:
33. The motive alleged in this case is that since the deceased was working as maid in three houses, the accused was doubting her character. Due to this, frequently the accused was quarreling with the accused and he had also assaulted her many times. He had developed suspicion about her chastity and he has murdered her.
34. So far as the proof of motive is concerned, it is necessary to mention the recognized principle of criminal law at this juncture. In a case of circumstantial evidence, motive assumes great importance., for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof. However, the evidence regarding existence of motive which operates in mind of assassin is very often, not within the reach of others. The said motive may be known to the victim of the crime. The motive may be known to the assassin and no one else may know what gave birth to such evil thought, in the mind of the assassin. In a case of 14 S.C.No.1524/2012 circumstantial evidence, the evidence indicating the guilt of the accused becomes untrustworthy and unreliable, because most often it is only the perpetrator of the crime alone, who has knowledge of the circumstances that prompted him to adopt a certain course of action, leading to the commission of crime. Therefore, if the evidence on record suggests sufficient/ necessary motive to commit a crime, it may be conceived that the accused has committed the crime.
35. Further, in a case when the motive alleged against the accused is fully established, it provides fundamental material to connect the chain of circumstances. It affords a key on pointer to scan the evidence in the case in that perspective and as a satisfactory circumstance of corroboration. However, in a case based on circumstantial evidence where proved circumstances complete the chain of evidence, it cannot be said that in absence of motive, the other proved circumstances are of no consequence. It is further necessary to mention here that there is no absolute legal proposition of law that in the absence of any motive an accused cannot be convicted for murder. Effect of absence of motive would depend on the facts of each case. Where the prosecution relies on circumstantial evidence only, motive is a relevant fact and can be taken into consideration under Section 18 of the Indian Evidence Act, but where the chain of circumstances establish beyond reasonable doubt that it is the accused alone who has committed the offence, the court cannot hold that in the absence of the motive of the accused being established by its prosecution, the accused could not be held guilty of the offence. The absence of 15 S.C.No.1524/2012 the motive cannot be a ground to reject the prosecution case where other proved circumstances are there.
36. So far as the present case is concerned, it is the evidence of PW.1 and PW.3 the prosecution relies upon, to prove the motive. PW.1 has stated in her evidence that the accused was not taking care of the family properly, he was not bearing the expenses, he was not providing groceries to the family and also not taking care of the children. It was the deceased who was bearing the educational expenses of her children and also paying rent. The accused was an alcoholic, frequently used to quarrel with the deceased by doubting her character. She has further stated that about 15 days back, deceased and accused along with children had come to her house, at that time, the accused had quarreled with the deceased and also assaulted her and taken her to home. It is the accused who has committed the murder.
37. PW.3 has also stated that the accused had assaulted the deceased in her presence. Though, she has requested the accused not to do such things, the accused did not hear her request. When the deceased came to her house, she had told about the bad conduct of the accused and she had also expressed her inability to live with him. Somehow, she has consoled her. Again, she has stated that since she was working as maid in three houses, the accused was doubting her chastity. Because of this reason, he has committed the murder of deceased Manjula.
16 S.C.No.1524/201238. In the cross-examination, PW.1 has admitted that the deceased was an alcoholic and the accused himself was forcing her to consume alcohol. Earlier, she had made an attempt to commit suicide by hanging. The neighbours had protected her. She has further stated that after getting the information about the death of her daughter, she went to her daughter's house and she noticed that dead body of her daughter was lying on the bed and the blood was oozing from her nose and mouth. She has further stated that the Police told her that the accused smothered Manjula by putting Pillow on her face and also strangulated her with charger wire. She has stated that the Police have shown the charger wire to her in the Police Station.
39. In the cross-examination of PW.3, the defence counsel tried to elicit fact that the accused and the deceased were living happily and due to her mental imbalance the deceased had committed suicide. However, PW.3 has denied all the suggestions that are put by the defence.
40. A careful evaluation of the evidence of PW.1, reveal that earlier deceased had made an attempt to commit suicide and the deceased was an alcoholic. It is relevant to mention at this juncture that it is only PWs.1 and 3, who have spoken about the motive. Both these witnesses are the relatives. PW.1 is the mother and PW.3 is the sister of the deceased. Through out their evidence, PWs.1 and 3 have stated that the deceased was an irresponsible man, he was not providing anything to the family. It was the deceased, who was bearing all the family expenses including the rent. However, it 17 S.C.No.1524/2012 is admitted by both these witnesses that the accused was working in a Gas Agency and he was working as loading and unloading of the cylinders. From this, it can be inferred that he was also getting some income from his work. Except these two witnesses, absolutely, there are no witnesses, who has spoken about this factor.
41. The prosecution has contends that the neighbour of the deceased one Smt.Renuka has seen the accused and deceased last. However, said Renuka has not been examined before this Court. Further, through out the evidence, there appears to be an exaggeration in the evidence of PW.1. Since PW.1 is a relative, a careful analysis of her evidence, it can be held that she is an interested witness. Through out her evidence and in the cross-examination, there appears to be exaggerations. So, it can be held that her evidence is not natural, she is not a natural witness. Her evidence is tainted with the interestedness. However, PW.3 also supports the version of PW.1. Again, there are some exaggerations in her evidence and her evidence is also tainted with interestedness.
42. Except these two witnesses, absolutely, there are no witnesses, who have spoken about motive factor. For the foregoing reasons, PWs.1 and 3 are interested witnesses, as their evidence is tainted with interestedness, it cannot be held that by placing reliance on the evidence of these two witnesses, the prosecution has established the motive factor in this case. With this, I hold the prosecution has failed to establish the circumstances of motive.
18 S.C.No.1524/2012ii) Subsequent abscondence of the accused:
43. According to the prosecution, immediately after the incident, the accused had absconded. PW.13 Sri.B.K.Srinivas Murthy, H.C.5724 examined to prove these circumstances. He has stated that on 07.07.2012, Sri.Siddalingaiah, PSI, had deputed himself and CW.23 to apprehend the accused. Thereafter, they seared for the accused. On the same day, at about 1.00 p.m., they received information that the accused is at Satellite Bus Stop and the informer shown the accused and they surrounded the accused, apprehended and produced him before CW.25 Siddalingaiah.
44. That the date of death of the deceased as per the complaint is on the night intervening 05.07.2012 and 06.07.2012. PW.13 has stated that they have arrested the accused on 07.07.2012 at the Satellite Bus Stop. The accused in his written statement filed under Sec.313 (5) of Cr.PC, stated that on the same day, himself and his brother went to the Police Station to inform the Police that his wife has committed suicide. The Police detained him in the Police Station itself and he was there in the Police custody till he was produced before the Magistrate. Except the evidence of PW.13, no other evidence are there to show that the accused was absconded.
45. With regard to abscondence, the Hon'ble Apex Court in the case of Durga Burman Roy Vs. State of Sikkim, (2014) 13 SCC 35, wherein the Hon'ble Apex Court has held that, "To abscond" means, go away secretly or illegally and hurriedly to escape from custody or avoid arrest. In the instance case the accused had told that they 19 S.C.No.1524/2012 were from their place of work at factory to their home in other district. They were into custody from their respective houses only, on the 3rd day of the incident. The Supreme Court has observed that it is difficult to hold that the accused had been absconding. Even assuming for argument sake that they were not seen at their work place after the alleged incident, it cannot be held that by itself an adverse inference is to be drawn against them'.
46. In the present case, the date of death of deceased Manjula is during the night hours of 06.07.2012. The accused was arrested on the next day i.e., on 07.07.2012 in the Satellite Bus Stop at 1.00 p.m. There was a gap of nearly about 32 hours in apprehending the arrest. To constitute abscondence, the accused must have intended to go to the place, which is away from reach of the Police and others. In the present case, as there is a gap of nearly about 32 hours, if at all, the accused had intended to abscond, he would have gone to some distance place, which would be away from reach of the Police. As it is stated by PW.13, the accused was apprehended at Satellite Bus Stop, which is very much nearer to the house of the deceased. Hence, it cannot be held that only because the accused was apprehended at Satellite Bus Stop, it cannot held that it is an abscondence. Moreover, the accused was apprehended without any much difficulty. At no stretch of imagination, apprehending the accused at Satellite Bus Stop, it cannot be construed as abscondence of the accused. With this, I hold that the prosecution has not proved circumstances of abscondence.
20 S.C.No.1524/2012iii) Recovery of incriminating articles on the disclosure nade by the accused:
47. As regards this circumstance, the prosecution relies on the evidence of PWs.6 and 9. PW.6 Sri.R.Vishwanath and PW.9 Sri.Krishna Murthy N. PW.6 has completely turned hostile to the prosecution. Though, the learned Public Prosecutor has cross-examined this witness, nothing beneficial could be elicited from this witness. Hence, the evidence of PW.6. Hence, the evidence of PW.6 is of no avail to the prosecution.
48. PW.9 Sri.Krishna Murthy has supported the prosecution. He states that about four years back, in the afternoon at 3.00 p.m. he was going near Vijayanagar Police Station. Vijayanagara Police secured him to the Police Station. At that time, the accused Mohan Kumar was there in the Police Station. The Police asked him whether he knows the accused. He has stated that he knows the accused. Thereafter, the accused took himself, CW.14 Javeed Pasha and PW.6 Vishwanath to an open site at Nagarabhavi. There, he took MO.2 thread and gave it to Police. The Police recovered the same in his presence and prepared Ex.P.8 Panchanama in his presence only and he has stated that he has given statement before the Police.
49. In the cross-examination, he has stated that accused Mohan Kumar is is distant relative. Surrounding the place of recovery, some houses are situated. In his cross- examination, the counsel for the defence tried to elicit a fact 21 S.C.No.1524/2012 that the accused had not taken himself, Police and other witnesses to a open site at Nagarabhavi and no recovery is effected and he is deposing falsely before the Court. This witness has denied all the suggestions.
50. A evaluation of the evidence of this witness, what can be stated is that he is the relative of the accused. He has stated that he had knowledge about the death of deceased Manjula. That being the case, he has stated that he was passing near Vijayanagar Police Station, the Police called him and he went to the Police Station. There arise a doubt regarding his participation in the Panchanama proceedings as per Ex.P.8 and his evidence does not appear to be natural one. Moreover, he is a relative and no other independent witnesses are examined to prove the circumstances of recovery. He has given evidence in such a way as if he has prepared to give such evidence. He is not a trustworthy witness. As he has not stated what was the reason for him to come to the Poice Station. His evidence cannot be accepted and the same is not sufficient to prove the circumstances of recovery. Moreover, MO.2 is an elastic thread. According to the prosecution, this is an ligature material, with which, the accused has strangulated the accused. After alleged recovery of MO.2, it was not sent to the Doctor, who has conducted the Post Mortem and there is no corroboration with regard to recovery of MO2 with that of the medical evidence. Hence, it has to be held that the recovery of MO2 is insignificant in this case.
22 S.C.No.1524/2012iv) Homicidal death:
51. A specific contention of the prosecution is that deceased Manjula died due to strangulation and smothering. The defence of the accused is that deceased was under the habit of consuming alcohol, earlier she had made an attempt to commit suicide and she was protected by the neighbours and under the influence of the alcohol, she has committed suicide.
52. The prosecution relies on the evidence of PW.19 Dr.Garudadri, who conducted the post mortem examination on the dead body of Manjula. He has stated in his evidence that on the external examination, face and upper neck above ligature mark was congested, blood was oozing from the nostrils, Tongue bitten and present between two jaws, eyes were closed, sub-conjunctive, hemorrhage present on both the sides. He has further stated that ligature mark in the form of pressure abrasion was present all around the neck, horizontally placed below the level of Thyroid Cartilage, at 8 cm below the chin, 8 cm right angle of jaw and 8 cm below left angle of jaw. Ligature measures 39 cm in length and 1 cm in width having brownish appearance and it is prominent on front and sides of the neck.
53. He has further stated that on dissection, brain was congested and showed multiple petechial hemorrhage present on cut section. Multiple petechial hemorrhage present surface of the lungs, multiple petechial hemorrhage present on heart, mucous of mouth pharynx and esophagus. It is his further evidence that on dissection of the neck, multiple subcutaneous hemorrhage present above and below the ligature mark. The 23 S.C.No.1524/2012 tissues under the ligature mark are avascular and gilstening. Hyoid bone was intact. Thyroid and cycloid cartilages was intact. Ligature mark was anti mortem in nature and he has given opinion that the death is due to asphyxia as a result of ligature constriction around the neck.
54. The specific contention of the defence is that the death of the deceased was not due to strangulation, it was due to hanging. PW.19 has not been cross-examined. Hence, his evidence with regard to appearance of the neck portion and opinion as to the cause of death as a result of ligature constriction around the neck remained unchallenged. However, at the time of argument, the learned defence counsel has argued that the death by asphyxia can occur even by self- hanging not only by strangulation. He has stated that a careful perusal of the post mortem report Ex.P.14 itself shows that the death was due to asphyxia as a result of ligature constriction, it can also happen by hanging. This is the only submission of the learned defence counsel. So far as this contention is concerned, PW.19 Dr.Garudadri has opined that death is due to asphyxia as a result of ligature constriction. However, his evidence and Ex.P.14 remained silent on the aspect of smothering. The prosecution witnesses PWs.1, 3 and I.O have stated that, the accused committed the murder of deceased by smothering her by putting Pillow on her face. There is no supporting medical evidence regarding this contention. Since PW.19 Dr.Garudadri has clearly stated that the death was due to asphyxia as a result of ligature constriction, by placing reliance on evidence, this Court has to hold that the death of 24 S.C.No.1524/2012 the deceased was due to asphyxia as a result of ligature constriction, but not due to smothering.
55. The learned counsel for the defence contended that the death due to asphyxia can also happen due to hanging. This is the bare submission that has been made by the counsel for the defence. Except this, no other submission is made on behalf of the defence. Only because, the defence has not made any attempt to distinguish the homicidal death and death by hanging, the Court cannot ignore the doubts. At this juncture, it is necessary to refer some of the rulings in order to come a proper conclusion. The Hon'ble High Court of Punjab and Haryana in the case of Amar Iqbal Singh Vs State of Punjab, reported in 2009 SCC Online P & H 2607, by evaluating the evidence of prosecution witness, has referred Modi's Medical Jurisprudence and Toxicology, wherein, at para-20 of the judgment, it is stated that:
"20. After noticing all these parameters, Modi has drawn following table on page No.583-4:
"Differences between Hanging and
Strangulation
The differences between hanging and
strangulation are given below in tabulated form:
Hanging Strangulation 1. Mostly suicidal. 1. Mostly homicidal.
2. Face-Usually pale and 2. Face-Congested, livid and petechiae rere. marked with petechiae.
3. Saliva-Dribbling out of the 3. Saliva-No such dribbling. moth down on the chin and chest.
4. Neck-Stretched and 4. Neck-Not so. elongated in fresh bodies.25 S.C.No.1524/2012
5. External signs of asphyxia, 5. External signs of asphyxia, usually not well marked. very well marked (minimal if death due to vasovagal and carotid sinus effect).
6. Bleeding from the nose, 6. Bleeding from the nose, mouth and ears very rare. mouth and ears may be found.
7. Ligature mark-Oblique, 7. Ligature mark - Horizontal non-continuous placed high up or transverse continuous, in the neck between the chin round the neck, low down in and the larynx, the base of the the neck below the thyroid, the groove or Further-row being base of the groove or furrow hard, yellow and parchment- being soft and reddish. like.
8. Abrasions and ecchymoses 8. Abrasions and ecchymoses round about the edges of the round about the edges of the ligature mark, rare. ligature mark, common.
9. Subcutaneous tissues 9. Subcuteneous tissues under the mark - White, hard under the mark - Ecchymosed. and glistening.
10. Injury to the muscles of 10. Injury to the muscles of the the neck - Rare. neck - Common.
11. Carotid arteries, internal 11. Carotid arteries. coats ruptured in violent cases of a long drop.
12. Fracture of the larynx and 12. Fracture of the larynx and trachea - Very rare and that trachea - Often found also too in judicial hanging. hyoid bone.
13. Fracture-dislocation of the 13. Fracture - dislocation of cervical verte-brae - Common the cervical vertebrae - Rare. in judicial hanging.
14. Scratches, abrasions and 14. Scratches, abrasions bruises on the face, neck and fingernail marks and bruises on other parts of the body - the face neck and other parts Usually not present. of the body - Usually present.
15. No evidence of sexual, Sometimes Evidence of sexual assault. assault.
16. Emphysematous bullae Emphysematous bullae on the on the surface of the lungs - surface of the lungs - May be Not present. present.26 S.C.No.1524/2012
56. Further, the Hon'ble Apex Court in the case of Ravirala Laxmaiah Vs State of Andra Pradesh reported in (2013) 9 SCC 283, has also placed reliance on the distinguision made by the Hon'ble Court. While distinguishing, it is held that:
"25. Mr.Rangaramanujam, however, relied upon Modi's Medical Jurisprudence and Toxicology, 23rd Edn. At Plaintiff.584 wherein a difference between hanging and strangulation has been stated. Our attention in this connection has been drawn to Point 12 which reads as under:
Hanging Strangulation
12. Fracture of the larynx Fracture of the larynx and and trachea - Very rare and trachea - Often found also that too in judicial hanging. hyoid bone.
26. A bare perusal of the opinion of the learned author by itself does not lead to the conclusion that fracture of hyoid bone, is a must in all the cases."
19. Dr Aman Hingorani has submitted that in the present case, the post-mortem report is completely silent about the ligature mark and its characteristics, as a result of which it cannot be said that the present case was one of homicidal strangulation/throttling as alleged by the prosecution. Dr Hingorani has placed a very heavy reliance on Modi's Medical Jurisprudence and Toxicology wherein after emphasising that "hyoid bone and superior cornua of the thyroid cartilage are not, as a 27 S.C.No.1524/2012 Rule, fractured by any other means other than by strangulation", the differences between hanging and strangulation are given in tabulated form, two of them being as follows:
Hanging Strangulation
7. Ligature mark-Oblique, 7. Ligature mark -
non-continuous placed high Horizontal or transverse
up in the neck between the continuous, round the neck,
chin and the larynx, the base low down in the neck below of the groove or Further-row the thyroid, the base of the being hard, yellow and groove or furrow being soft parchment-like. and reddish.
14. Scratches, abrasions 14. Scratches, abrasions and bruises on the face, fingernail marks and bruises neck and other parts of the on the face neck and other body - Usually not present. parts of the body - Usually present.
57. In the present case, Dr.Garudadri, who has conducted autopsy on the dead body, has stated the injuries. It is stated that ligature mark was horizontally placed below the level of thyroid at 8 cm below the chin, 8 cm right angle of jaw and 8 cm below left angle of jaw. In Ex.P.14, it is clearly stated that hyoid one, thyroid and cycloid cartilages were intact. As per the above distinguision adopted by the Hon'ble Apex Court and Hon'ble High Courts, if the death is due to strangulation, there must be fracture of hyoid bone and thyroid cartilages. In the present case, as it is stated by the Doctor, both the bones are intact. It indicates possibility of death of deceased by strangulation is very less.
28 S.C.No.1524/201258. Further, the accused in his statement recorded under Sec.313 of Cr.PC has stated that he saw the deceased hanging to ceiling fan. PW.4 Venkatappa, owner of the house has also stated that the Police have told him over phone that Manjula has committed suicide by hanging herself. He has further stated that when he came to home, he has noticed that the front door of the house was broken and he saw the deceased hanging to the ceiling fan through the Window. Again, it probabilise the defence of the accused that the death of deceased was not due to strangulation, it was due to hanging. With this, I hold that the prosecution has also failed to prove the circumstances of homicidal death. With this discussion, I hold that the circumstances are not established conclusively and these circumstances are not consistent with the hypothesis of guilt and the accused, they are not sufficient to explain the hypothesis of guilt and the accused. The circumstances are not of conclusive nature and tendency. The circumstances do not form complete chain, there appears a well founded doubt in the prosecution case, which enure to the benefit of the accused. With this, I conclude that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. Accordingly, I answer point No.1 is in the 'Negative'.
59 POINT NO.2 :- For the aforesaid reasons, Iproceed to pass the following:-
29 S.C.No.1524/2012ORDER Acting under Section 235(1) of Cr.P.C., the accused is hereby acquitted for the offence punishable under Section 302 of IPC.
The bail bonds of the accused and that of his surety bonds executed as per the order of this Court, in compliance of Sec.437(A) of Cr.PC shall remain in force for a period of six months as mandated under Sec.437(A) of Cr.PC.
MO.1 Pillow, MO.2 Thread, MO.3
Chudidhar Green Colour Top, MO.4
Chudidhar Brown Colour Pant, MO.5 Bra and MO.6 Blue Colour Underwear being worthless, are ordered to be destroyed.
MO.7 one pair Gundu Drops is ordered to be released in favour of PW.1 Smt.Neelamma. mother of the deceased Manjula.
The order regarding material objects shall be implemented after the expiry of the appeal period.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 23 rd day of March, 2022) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.30 S.C.No.1524/2012
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:-
PW.1 : Neelamma.
PW.2 : Prasad.
PW.3 : Geetha.
PW.4 : Venkatappa.
PW.5 : Rathnamma.
PW.6 : R.Vishwanath.
PW.7 : Pradeep.
PW.8 : Kumar.
PW.9 : Krishna Murthy N.
PW.10 : Narasimha Battacharya.
PW.11 : Puttaraju.
PW.12 : G.Somashekar.
PW.13 : B.K.Srinivas Murthy.
PW.14 : L.Krishna.
PW.15 : B.U.Pradeep.
PW.16 : C.S.Siddalingaiah.
PW.17 : Chandrashekar P.
PW.18 : E.B.Sridhar.
PW.19 : Dr.Garudadri.
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION:-
Ex.P1 Complaint.
Ex.P2 Spot Mahazar.
Ex.P3 Notice to panch witness.
Ex.P4 Inquest Mahazar.
Ex.P5 Statement of PW.4 Venkatappa.
Ex.P6 Statement of PW.5 Rathnamma.
31 S.C.No.1524/2012
Ex.P7 Spot Sketch.
Ex.P8 Seizure Mahazar.
Ex.P9 Statement of PW.6 Vishwanath.
Ex.P10 FIR.
Ex.P11 Statement of PW.11.
Ex.P12 Statement of PW.13.
Ex.P13 Statement of PW.17.
Ex.P14 Postmortem report.
Ex.P15 Panchanama.
Ex.P.16 Portion of Statement.
LIST OF MATERIAL OBJECTS MARKED:-
MO.1 Pillow.
MO.2 Thread.
MO.3 Chudidhar green colour top.
MO.4 Chudidhar brown colour pant.
MO.5 Bra.
MO.6 Blue colour Kacha.
MO.7 One pair Gundu drops.
LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE:- Nil (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.