Karnataka High Court
The State Of Karnataka vs Sri B S Naveena @ on 19 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
1 Crl.A.No.1798/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL No.1798 OF 2017 (A)
BETWEEN:
THE STATE OF KARNATAKA
THROUGH CPI, SOMWARPET CIRCLE,
SHANIVARSANTHE P.S.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001. ... APPELLANT
(BY SRI. B.N. JAGADEESHA, ADDITIONAL SPP)
AND:
SRI B S NAVEENA @
GURUPADASWAMY
S/O LATE SADASHIVA,
COOLIE,
PRESENTLY R/O LINE HOUSE OF GUNDAPPA,
NIDTHA VILLAGE,
KANIVE BASAVANAHALLI VILLAGE,
SHANIVARASANTHE HOBLI,
SOMWARPET TLAUK.
PERMANENT R/O BADAKYATHANAHALLI,
HALLIMYSORE HOBLI,
HOLENARASAPURA TALUK,
HASSAN DISTRICT - 573 211. ... RESPONDENT
(BY SRI. S. JAVEED, AMICUS CURIAE)
2 Crl.A.No.1798/2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO
APPEAL AGAINST THE JUDGEMENT AND ORDER DATED
15.06.2017 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, KODAGU, MADIKERI IN S.C.NO.36/2016
ACQUITTING THE RESPONDENT/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 302, 201 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
ARGUMENTS HAVING BEEN HEARD THROUGH PHYSICAL
HEARING/VIDEO CONFERENCE AND RESERVED FOR
JUDGMENT ON 08.12.2023, COMING ON FOR
PRONOUNCEMENT, THIS DAY, UMESH M. ADIGA J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This is a State's appeal against the judgment passed in S.C.No.36/2016 on the file of Principal District and Sessions Judge, Kodagu, Madikeri, acquitting the accused of the offences punishable under Section 302 and 301 of IPC.
2. Brief facts of the case of prosecution were that:
Deceased Smt. Mani was live-in relationship with accused. It appears, she was married to PW-9 -
Ningaraju. About four years prior to the incident, 3 Crl.A.No.1798/2017 deceased quarrelled with PW-9, left his company and started living with accused. Initially, accused was living at Abbur village in Arkalagudu Taluk along with deceased Smt. Mani. Both of them were serving as a coolie.
Thereafter, both of them shifted to Kannive Basavanahalli Village and serving in the coffee garden of one Mr.Gundappa. There were line of houses in the said coffee garden, one of such houses was given to deceased Smt. Mani and accused; and both were residing in the said house and serving in the coffee garden of Mr. Gundappa. It appears there is a pond situated in the coffee garden of Mr. Gundappa, which was situated about 150 to 200 metres away from line houses situated in the coffee garden.
3. It is further case of prosecution that about a year prior to death of deceased Smt. Mani, she had been suffering from uterus cancer. Accused had spent more than rupees two lakhs for her treatment; inspite of that, she was not cured. Accused had provided treatment to 4 Crl.A.No.1798/2017 her from Father Muller's Hospital at Mangaluru. He had to take her frequently to the said hospital for treatment. It appears accused had spent for treatment of deceased Smt. Mani by obtaining loan from others and he did not repay the same. It appears that deceased Smt. Mani had severe stomach pain due to the cancer. Even she was unable to do coolie work as well as household work. She was requesting the accused to prepare the food for them. Due to lot of spending on treatment of Smt. Mani by obtaining loan as well as she was unable to do any work and he had to work at home also to prepare the food to both of them, he was very much frustrated and angry against the deceased Smt. Mani. Often he was thinking to murder her.
4. It appears on 10.10.2015, during the mid-night, around 12.00 hours, accused hatched a plan to murder deceased Smt. Mani and threw her body in the pond situated in the land of Mr.Gundappa. He went outside his house and verified. He found no movement of people or 5 Crl.A.No.1798/2017 vehicle; even house of his neighbour was locked since they had gone to their native place. Accused thought it fit to commit the crime since there were nobody to see the same.
5. It is further case of prosecution that accused took a scarf and strangled deceased Smt. Mani with said scarf, due to suffocation, said Smt. Mani was dead. Accused took the dead body and threw it in the pond. Accused also took slippers of the deceased and kept on the stair case of the pond so that people should think that either deceased Smt. Mani was drowned in the pond accidentally or she fell in the pond to commit suicide since she had been suffering from cancer.
6. It is the further case of prosecution that on 13.10.2015, around 9.00 a.m., PW-3 - Smt. Manjula and her husband, PW-6 - Unnikrishna, who were neighbours of accused returned from their native place, they found that door of the house was locked from outside. It appears, PW-3 went near the pond and saw the slippers 6 Crl.A.No.1798/2017 of deceased. PW-3 informed said fact to PW-6. In the afternoon, PW-6 found that accused was inside his house. He informed about the finding of slippers of deceased Smt. Mani on the stair case of pond and enquired accused whereabouts of deceased Smt. Mani. Accused told him that deceased Smt. Mani had gone to her parents house.
7. It is the further case of prosecution that, on 14.10.2015, around 7.00 a.m., accused met PW-6 and told that dead body of his wife (deceased Smt. Mani) was found floating in the pond. Accused lodged a complaint - Ex.P7 to Shanivara Sante Police Station, informing unnatural death of deceased Smt. Mani. The Station House Officer (for short 'SHO') - PW-7 - Smt. Shashi, on the basis of Ex-P7 registered a case in UDR No.17/2015 under Section 174 of Cr.P.C. Thereafter, PW-15 - Ravikirana (PSI) of Shanivarasante Police Station, took up further investigation. He went to the pond and saw the dead body of Smt.Mani. He got it 7 Crl.A.No.1798/2017 removed from the pond with the help of PW-10 - Subramani and PW-11 - Shivaji. PW-15 drew inquest on the dead body in the presence of witnesses and requested PW-13 - Dr. Shivaprasad H.S, Medical Officer, Shanivarasante Government Hospital to conduct the post mortem at the spot since the body was decomposed. Accordingly, PW-13 conducted the post mortem. Thereafter, PW-15 shifted the body to the mortuary of Government Hospital, Shanivarasanthe.
8. PW-15 tried to secure the presence of brother and husband of the deceased Smt. Mani to hand over the body. However, both of them refused to receive the body. Hence, PW-15 buried the body of deceased Smt. Mani in the presence of witnesses and prepared mahazar in this regard as per Ex.P9.
9. It is the further case of prosecution that on 15.10.2015, PW-15 received post mortem report - Ex.P12 from Government Hospital, Shanivara Sante. Report was indicating that death was due to asphyxia, as 8 Crl.A.No.1798/2017 a result of strangulation with fracture of thyroid cartilage. Even considering the inquest also, PW-15 suspected that it was not unnatural death but homicidal death. He prepared self report as per Ex.P14 and on that basis registered Cr.No.157/2015 and submitted the FIR to the Magistrate as per Ex.P15.
10. It is the further case of prosecution that as per the directions of PW-17 - B.R. Pradeep, then CPI of Somavara pete circle, PW-15 arrested the accused and produced before PW-17. On interrogation of the accused, he confessed the guilt and stated in detail about the incident. He also confessed that, if he were taken, he would show the place wherein he had committed crime and also produce incriminating materials. PW-17 recorded his confession.
11. It is the further case of prosecution that PW-17 secured witnesses and in their presence went to the house of the accused, wherein, accused had shown the spot of incident. PW-17 drew mahazar in the said place. 9 Crl.A.No.1798/2017 Thereafter, accused took police and others to the pond, wherein he had thrown the dead body. PW-17 drew the mahazar in the said spot. PW-17 recorded the statement of witnesses; collected the relevant documents and on conclusion of the investigation submitted the charge sheet to the Court of JMFC for the offences punishable under Sections 302 and 201 of IPC.
12. The learned JMFC took cognizance of the case; secured the presence of the accused and supplied copy of the charge sheet to the accused as provided under Section 207 of Cr.P.C. The alleged charges levelled against the accused are triable by the Court of Sessions, hence, the learned JMFC committed the case to Court of Principal District and Sessions Judge, Kodagu, Madikeri as provided under Section 209 of Cr.P.C.
13. The learned Sessions Judge, after receipt of charge- sheet and enclosures, registered a Sessions case No.36/2016. Secured the presence of accused. The learned Sessions Judge heard both the side on charge 10 Crl.A.No.1798/2017 and framed the charges for the offence punishable under Sections 302 and 201 of IPC. Accused pleaded not guilty. The prosecution to prove its case examined PW-1 to 17, got marked Ex.P1 to P17 and M.Os 1 to 6 and closed its evidence. The learned Sessions Judge examined the accused under Section 313 of Cr.P.C., and recorded answers of the accused. Accused did not offer defence evidence when called upon.
14. The learned sessions judge heard the arguments on both side. The learned sessions Judge appreciating materials available on record by impugned judgment dated 15.06.2017 acquitted the accused for the offences punishable under Sections 302 and 201 of IPC. Being aggrieved by the same, State preferred this appeal on the grounds mentioned in the appeal memo.
15. We have heard the arguments of learned Additional SPP and learned advocate for accused.
16. The learned Additional SPP would submit that from the evidence of prosecution witnesses, which are not 11 Crl.A.No.1798/2017 specifically denied in the cross-examination by the accused, it is proved that accused and deceased, were living together in the house situated in the coffee garden of Mr.Gundappa. On 10.10.2016, PW-3 - Smt. Manjula, met deceased in her house and the deceased was telling her that she was very much depressed since she had been suffering from cancer. The deceased had taken treatment from different hospitals at the cost of accused. These facts were not denied by the accused. Post- mortem report and inquest reveal that deceased Smt. Mani died due to asphyxia as a result of strangulation. The learned Additional SPP would further submit that accused himself has given a report to police as per Ex.P7, informing that deceased slept in the house on 10.10.2015, but he did not find her on the next day morning. The said statement of accused clearly indicates that accused had last seen deceased on 11.10.2015 around 6.00 a.m. Thereafter, her dead body was found in the pond. Therefore, it is for the accused to explain the cause of death of Smt. Mani. Accused did not give 12 Crl.A.No.1798/2017 any explanation. Hence, under Section 106 of Indian Evidence Act, onus shift on the accused to give explanation/evidence regarding cause of death of Smt. Mani.
17. The learned Additional SPP further submits that even though deceased was missing from the morning of 11.10.2015, no missing complaint was lodged by the accused till 14.10.2015. There is no explanation by the accused for not filing the complaint till 14.10.2015. If really she was missing and accused had no role in her death, he could have lodged complaint immediately, when he did not find her on 11.10.2015. The prosecution witnesses have supported the case and there are no reasons to discard their evidence. From the oral and documentary evidence, prosecution had proved guilt of the accused beyond all reasonable doubt. However, the learned Sessions Judge, without appreciating the evidence properly, acquitted the accused. Therefore, interference by this Court is required. 13 Crl.A.No.1798/2017
18. The learned advocate for respondent - accused would submit that there are no evidence to connect the accused with the guilt. The case was built up on circumstantial evidence. No circumstances are proved by the prosecution. Deceased was said to be suffering from cancer and regularly taking treatment. No medical records are produced to prove that she was suffering from cancer. Accused had said to be spent lot of amount for her treatment and he had obtained loans. No evidence is let in to prove the said fact. There are no materials to prove that accused alone could be responsible for death of Smt. Mani. Her dead body was found in the pond, which is in an open area. Deceased left her legally married husband and children and was said to be residing with accused. Her husband might have grievance about her illicit relationship with accused. There are chances that he might be involved in this crime. There are no evidence to prove that there were frequent quarrels between accused and deceased and that resulted 14 Crl.A.No.1798/2017 in murder of Smt. Mani. In the absence of these facts and only on the basis of evidence of police officer, the accused cannot be convicted. The learned Sessions Judge, properly appreciated the evidence. The learned trial Judge, considering the law laid down by this Court and Hon'ble Apex Court, held that prosecution was not able to prove circumstances to convict the accused. Therefore, the impugned judgment is a well reasoned order and does not call for any interference and prayed to dismiss the appeal.
19. Following point emerges for our determination:
i. Whether prosecution proved beyond reasonable doubt that on 10.10.2015 during the mid-night around 12.00 hours in Kannave Basavanahalli village, with an intention to murder Smt. Mani strangulated her with the help of scarf and murdered her and thereby accused has committed an offence punishable under Section 302 of IPC?
II. Whether the prosecution has proved beyond reasonable doubt that after the murder of Smt. Mani to destroy/conceal evidence against him, threw the dead body of Smt. Mani in the pond situated in the land of Mr. Gundappa at Kannive Basavanahalli and thereby committed an 15 Crl.A.No.1798/2017 offence punishable under Section 201 of IPC?
III. Whether the findings of the learned trial Judge is perverse and arbitrary and interference by this Court is required? iv. What order?
20. This case is built up on circumstantial evidence. The prosecution has to prove each circumstances to connect the accused with the guilt. The prosecution has to prove the following circumstances:
i. Deceased Smt. Mani was live-in relationship with accused and residing with him at the time of her death.
ii. Deceased Smt. Mani was suffering from cancer and she had been treated at the expense of accused.
iii. Accused had spent more than rupees two lakhs by obtaining loan for treatment of deceased.
iv. Deceased was unable to do any work including household work due to stomach pain.
v. Accused last seen in the company of the deceased on the day of her death.
16 Crl.A.No.1798/2017vi. Accused strangulated her and murdered her, thereafter, dropped her body in the pond.
21. In this case, to prove death of deceased Smt. Mani is a homicidal death, the prosecution examined PW-1, who is one of the co-owner of the land wherein pond is situated and also co-owner of the coffee garden of Mr. Gundanna. In his evidence, he has stated about the finding of the dead body of Smt. Mani, in the pond; removal of the same by the Police and drawing of inquest as per Ex.P1. He also identified dress material found on the dead body as M.Os. 1 to 5. He did not fully support the case of prosecution, therefore, the learned Public Prosecutor partially treated him as hostile witness and cross-examined him. In the cross-examination of learned SPP, he denied of seeing ligature mark on the neck of dead body. The accused has not cross-examined the witness.
22. PW-2 is also witness to seeing the dead body Smt. Mani on 14.10.2015 and witness to Ex.P1. He 17 Crl.A.No.1798/2017 corroborated evidence of PW-1. He did not fully support the case of prosecution, therefore, the learned Public Prosecutor partially treated him as hostile witness and cross-examined him. In the cross-examination of learned SPP, he denied of seeing ligature mark on the neck of dead body. The accused has not cross-examined the witness.
23. PW-3 was the neighbour of deceased and accused. In her evidence, she has stated about seeing the dead body of Smt. Mani in the pond and removal of the same by the police from the pond. She denied of giving statement to the Police. She did not fully support the case of prosecution, therefore, the learned Public Prosecutor partially treated her as hostile witness and cross-examined her. In the cross-examination of learned SPP, she denied her previous statement given to police as per Ex.P1 (c) and P2. The accused has not cross- examined the witness.
18 Crl.A.No.1798/2017
24. PW-4 is also one of the co-owner of the coffee estate, wherein pond was situated. He also stated about the finding of the dead body of Smt. Mani in the said pond. He also stated that death of Smt. Mani was due to cancer and both deceased and accused were residing in house situated in their coffee garden. He denied that police recorded his statement. He did not fully support the case of prosecution, therefore, the learned Public Prosecutor partially treated him as hostile witness and cross-examined him. In the cross-examination of learned SPP, he denied his previous statement given to police as per Ex.P1 (d) and Ex.P3. The accused has not cross-examined the witness.
25. PW-5, who was known person to deceased has stated that she was suffering from cancer and had taken treatment at Hassan and Mangaluru. She also saw the dead body of Smt. Mani in the pond. She denied that police recorded her statement. She did not fully support the case of prosecution, therefore, the learned Public 19 Crl.A.No.1798/2017 Prosecutor treated her as hostile witness and cross- examined her. In the cross-examination of learned SPP, she denied her previous statement given to police as per Ex.P1 (e) and Ex.P4. The accused has not cross- examined the witness.
26. PW-6 was neighbour of deceased and accused. He has further stated that there were 10 to 12 houses in the coffee estate belonging to Mr. Gundappa. Accused and his wife Smt. Mani were residing in one of such houses, which was adjacent to his house. He saw the dead body of Smt. Mani, removed from the pond. He has stated that the Police had not recorded his statement. He did not fully support the case of prosecution, therefore, the learned Public Prosecutor treated him as hostile witness and cross-examined him. In the cross-examination of learned SPP, he denied his previous statement given to police as per Ex.P5. The accused has not cross- examined the witness.
20 Crl.A.No.1798/2017
27. PW-8 is a woman police constable, in her evidence she has stated that on 14.10.2015 at 12.00 noon, body of a woman was removed from pond in her presence; she escorted the body while shifting to mortuary. It was buried by the police. While conducting the post-mortem, the Medical officer handed over dress materials found on the dead body to her. She produced the same before PSI and they were seized under Mahazar as per Ex.P8. She identified the said dress materials as M.Os.1 to 5. Accused did not cross-examine her.
28. PWs-10 and 11 had removed dead body from pond. In their evidence, they have stated the said facts. PW-11 has also stated that the said body was buried and at that time the mahazar was drawn as per Ex.P9. They were not cross-examined by the accused.
29. The above said witnesses have consistently stated finding of dead body of Smt. Mani in the Gundappana Kere (Pond) on 14.10.2015; removal of the said dead body from the pond in the presence of police; conducting 21 Crl.A.No.1798/2017 of the inquest on the body and post-mortem near the pond. These facts were not disputed by the accused. The said witnesses have not fully supported the case of the prosecution and in the cross-examination by the learned prosecutor nothing was brought out to show that they were not deposing true fact before the Court. However, there evidence regarding cause of death is not consistent with the case of the prosecution. They pleaded ignorance about cause of death and also have stated that they had not seen ligature mark on the neck of dead body. Two of them have stated that she died due to cancer. Evidence of the above said witnesses will not help the case of prosecution to connect the accused with the guilt.
30. Prosecution to prove the death of Smt. Mani as homicidal death has examined PW-13 - Dr. Shivaprasad H.S, who conducted post-mortem on the dead body. In his evidence, he has stated about conducting the post- mortem on 14.10.2015 and giving the report as per 22 Crl.A.No.1798/2017 Ex.P12. According to his evidence, death was due to "asphyxia as a result of strangulation. Due to that impact, reddened area seen around the neck with fracture of thyroid cartilage. The said mark is anti- mortem. Duration of the death might be 3 to 4 days prior to post-mortem. If a person tied the scarf around the neck then thyroid cartilage can be fractured and due to that death can be caused." In his cross-examination by the accused, he has stated that he did not mention time of death or duration of death before post mortem in the post mortem report. He denied the suggestions of the accused that such a strangulation mark can be caused by creepers. Nothing is brought out to disbelieve his evidence. It is true that in Ex.P12, he has not stated that the said ligature mark was by scarf. According to Ex.P1, the said scarf was found around the neck of dead body. The investigating officer appears to be not sent the said scarf and obtained the opinion of PW-13 to prove ligature article. However, in the cross-examination 23 Crl.A.No.1798/2017 of PW-13 by the accused, he was not questioned regarding the said scarf used for strangulation.
31. The evidence of PW-13 helps the prosecution to prove that the death of Smt. Mani was homicidal and her death was caused due to strangulation. Merely her death was homicidal death cannot be a ground to convict the accused. Prosecution has to prove that accused had strangulated her.
32. PWs-12 and 14 are the witnesses to the mahazar drawn of the place of murder as well as throwing of the dead body in the pond. Both the witnesses have partially supported the case of prosecution about drawing of the mahazar. For the sake of discussion, even if the said mahazars are held to be proved, but they are not sufficient to hold that accused had committed said crime. At the time of showing the place of incident, accused was in the police custody and the said place was house of the accused, which is not in dispute. Under these 24 Crl.A.No.1798/2017 circumstances, on the basis of such mahazars accused cannot be convicted in such a heinous crime.
33. PW-16 is Police Head Constable, in his evidence, he has stated that on 14.10.2015, around 11.30 a.m., accused came to the police station and gave a written complaint as per Ex.P7. On that basis, he registered UDR.Case.No.17/2015 as per Ex.P6. The learned Additional SPP submits that on the basis of contents of Ex.P7, the Court could safely hold that accused and deceased were live-in in relationship as husband and wife in the same house; deceased was suffering from uterus cancer and accused had spent for her treatment. Since it is a statement given by accused prior to registration of FIR against him, on the basis of evidence of PW-16, the said statement could be considered as evidence.
34. The submission of learned Additional SPP is not acceptable. Any confession made to the police, other than permissible under Section 27 of Indian Evidence Act, are not admissible in evidence. When a document is 25 Crl.A.No.1798/2017 to be admitted as evidence, entire contents of documents has to be accepted. Prosecution cannot contend that statement which is in its favour has to be accepted and which is against its case has to be rejected; that is not permissible.
35. Reading the Ex.P7, it indicates that, due to sufferance of cancer, deceased left the house on 11.10.2015 and in spite of his search he could not find her. On 14.10.2015, he went to pond and saw the dead body of the deceased. He suspect that due to sufferance from the cancer, she committed suicide. The said fact shall also be accepted if Ex.P7 has to be used against the accused. In the similar facts and circumstances of the case in the case of BHERU SINGH S/O KALYAN SINGH VS. STATE OF RAJASTHAN1, wherein it is held that:
Where the FIR is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act.1
(1994) 2 SCC 467 26 Crl.A.No.1798/2017 No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The FIR recorded under Section 154 Cr.P.C. is not a substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the FIR, the facts of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the FIR by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act.
In the present case the FIR discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. However, the FIR is not a wholly confessional statement, but only that part of it is admissible in evidence 27 Crl.A.No.1798/2017 which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister-in- law do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence."
The law laid down in the above said judgment is applicable to the facts of the present case. Hence, the submission of learned Additional SPP is not acceptable.
36. PW-16 and 17 are investigating officer. They have stated in detail about the investigation done by him. Their evidence is not corroborated by other witnesses. Some of the witnesses have stated that the deceased 28 Crl.A.No.1798/2017 was suffering from cancer and accused had spent more than rupees two lakhs for her treatment. They are material circumstances to prove the guilt of accused. However, no materials are collected to prove the said facts. Investigating officer has also not collected evidence to show that the accused was indebted by an extent of more than rupees two lakhs to treat the deceased. therefore, the said circumstances are not proved by the prosecution.
37. Merely accused and deceased were live-in relationship cannot be ground to presume that he was responsible for her death. It is pertinent to note that dead body was not found in the house of accused on the contrary it was found in a pond, it was found which is open to public. Anybody could have access to the said pond. There might be chances of someone murdered her for some reason and thrown the dead body in the pond. Therefore, the accused is not responsible to explain cause of her death as provided under Section 106 of 29 Crl.A.No.1798/2017 Indian Evidence Act. Merely accused did not give any explanation cannot be a ground to hold him guilty. For the sake of discussion, even if we consider Ex.P7, accused has given an explanation stating that on that day morning around 6.00 a.m., she left the house and did not return. These facts might be true and it cannot be held to be false merely because it was statement made by the accused. Hence, the contention of learned Additional SPP is not acceptable.
38. None have seen accused carrying the dead body to the pond, which was situated around 200 metres away from his house, as per evidence of PW-17. How he carried the dead body from his house to the pond is also not forthcoming in the case of prosecution. Accused was not a legally wedded husband of the deceased and there is no legal compulsion on him to provide treatment to her. When the deceased left her husband i.e. PW-9 and started residing with the accused, he could also have left her, if he was unable to meet her medical expenses. 30 Crl.A.No.1798/2017 There was no necessary for him to murder her and there is no motive to him to murder her. All these circumstances creates serious doubt to believe that accused alone was responsible for death of Smt. Mani and shifting her dead body to pond.
39. The learned trial Judge considered the evidence available on record. However, the learned trial Judge has not appreciated the evidence of prosecution witnesses properly and relied mostly on the judgments rendered by High Courts as well as Supreme Court. However, the learned trial Judge has come to right conclusion. Said findings are not perverse to interfere.
40. For the aforesaid discussions, we answer point No.1 to 3 in the 'Negative' and proceed to pass the following:
ORDER i. The appeal is dismissed.
ii. Judgment passed by the learned Principal
District and Sessions Judge, Kodagu,
31 Crl.A.No.1798/2017
Madikeri in Sessions Case No.36/2016
dated 15.06.2017 is confirmed.
iii. Office shall send back the Sessions Court records to trial court along with the copy of the judgment.
The Court, while acknowledging the services rendered by the learned Amicus Curiae Sri. S. Javeed, we direct the registry to pay the Honorarium of `6,000/- (Rupees Six Thousand only) to learned Amicus Curiae.
Sd/-
JUDGE Sd/-
JUDGE AG