Karnataka High Court
State By J P Nagar vs Smt Shivarathnamma on 15 June, 2020
Bench: B.Veerappa, Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2020
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL APPEAL No.406/2014
BETWEEN:
STATE BY J.P. NAGAR
POLICE STATION,
BENGALURU CITY.
... APPELLANT
(BY SRI S. RACHAIAH, HIGH COURT GOVERNMENT PLEADER)
AND:
SMT. SHIVARATHNAMMA,
W/O APPAJI,
AGED ABOUT 39 YEARS,
RESIDING AT No.164, 16TH CROSS,
5TH PHASE, J.P. NAGAR,
BENGALURU-560078.
PERMANENT ADDRESS:
MALLANAYAKANAHALLI,
ATHAGURU HOBLI,
MADDUR TALUK,
MANDYA DISTRICT-571428.
... RESPONDENT
(BY SRI B. SANTOSH, AMICUS CURIAE APPOINTED VIDE ORDER
DATED 11.06.2020)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 29.4.13
PASSED BY THE P.O., FTC-XIII, BANGALORE IN S.C.
No.1461/2010-ACQUITTING THE RESPONDENT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 AND 201 OF
IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The State filed the present Criminal Appeal against the judgment and Order of acquittal, acquitting the accused-Smt.Shivarathnamma, wife of deceased Appaji, of the offences punishable under Sections 302 and 201 of the Indian Penal Code.
2. It is the case of the prosecution that the deceased Appaji is the husband of the accused Smt.Shivarathnamma. They were the natives of Mallanayakanahalli, Athagur Hobli, Maddur Taluk, Mandya District. They were married about 20 years back. Out of the wedlock, they have two daughters and 3 a son. Their elder daughter is working in a private company at Mandya. The other children are staying in their native village. The accused and the deceased were doing agriculture for their livelihood in their native place. About six years prior to the alleged incident, they came to Bengaluru and started working as construction workers in the construction sites where buildings were coming up. About two months prior to the alleged incident, they had joined for work under the building contractor, P.W.3-Balaraj, who was working for construction of a building owned by P.W.1-Jagannath Rao, situated at No.164, Near Pushpanjali Kalyana Mantapa, 16th Cross, V Phase, J.P.Nagar, Bengaluru. The husband of the accused-Appaji was entrusted with the job of watchman of that building. The deceased Appaji and his wife-accused were staying in a room meant for garage shed, on the ground floor of the said building.
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3. It is further case of the prosecution that the deceased Appaji used to drink alcohol excessively. Since the last 7-8 years, he used to suspect the character and fidelity of his wife-the accused and every day he used to come to the house inebriated in a drunken state of mind and beat the accused and abuse her in filthy language. It is further alleged that, in the night of 20/21.06.2010 too, the deceased came home in a drunken state and went to sleep. The accused, who was fed up with the ill treatment and constant abuse by her husband, assaulted him with a survey wooden club- M.O.4 near the neck and over the chest of the deceased and thus caused bleeding injury. Thereafter, she gave a false information to P.W.2, Srikantaswamy, a resident of the opposite house, that somebody had killed her husband in the night at about 1.30 a.m. P.W.2 telephoned and informed the owner of the building, viz., P.W.1- Jagannath Rao. P.W.1 came near the spot and saw the dead body which was lying in the pool of blood. 5 Immediately, at about 2.15 am, P.W.1- Jagannath Rao came to the police station and gave a written complaint Ex.P.1 to the Police Inspector P.W.11- Umesh, who registered a case in Crime No.509/2010 for the offence punishable under Section 302 of the Indian Penal Code against an unknown person, as per FIR, Ex.P.16. Thereafter, P.W.11-the Investigating Officer proceeded to the spot in the night itself, conducted the spot-cum- seizure panchanama as per Ex.P.2 from 3.00 am to 3.45 am and seized the incriminating materials such as blood stained rug, bed sheets, survey wooden club, bangle pieces, blood stains from the wall, hairs, a pair of hawai chappal, another blood stained rug etc. as per M.Os.1 to 13. A rough sketch as per Ex.P.17 was drawn. The photographs of the dead body and the scene of occurrence were taken as per Exs.P.18 to P.22. On the next day, P.W.11- Investigating Officer conducted the inquest panchanama as per Ex.P.6 from 12.00 pm to 2.00 pm at KIMS Hospital. The 6 postmortem was conducted by P.W.8-Dr.Anand, KIMS Hospital, from 2.00 pm to 3.00 pm and issued the post mortem report as per Ex.P.8. The doctor-P.W.8 collected the blood sample from the dead body in M.O.17 bottle. The opinion regarding weapons namely M.Os.4 and 18-survey wooden clubs was also obtained from the same doctor as per Ex.P.7. The accused was arrested on 21.06.2010 and two pairs of green colour glass bangles M.O.14 were seized from the hands of the accused in the police station, as per Ex.P.4 seizure panchanama for the purpose of comparison. After investigation, the jurisdictional police filed final charge sheet against the accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code.
4. The jurisdictional Magistrate viz., V Additional Chief Metropolitan Magistrate, Bengaluru City, after taking cognizance of the alleged offences, registered a case in C.C.No.41862/2010 and thereafter, committed 7 the case to the City Civil and Sessions Court, Bengaluru, by the Order dated 11.11.2010.
5. The prosecution, in order to bring home the guilt of the accused, examined Exs.P.1 to 11 and marked the documents Exs.P.1 to P.34. The material objects M.Os. 1 to 18 were marked. On behalf of the accused, Exs.D. 1 to D.9 were marked. After completion of evidence of prosecution witnesses, statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the incriminating circumstances appearing against her. However, she has not adduced any defence evidence. In the 313 statement, the accused has stated that, on account of consuming alcohol, her husband fell in front of the house and died. After coming to know about the death of her husband, she and her relatives, on 21.06.2010, visited the police station and requested the police to take suitable action and then, the police took her 8 signature on a white blank paper instructing her to visit Kempegowda hospital to see the dead body, etc.
6. The learned Presiding Officer, Fast Track Court- XIII, Bengaluru, considering both the oral and documentary evidence on record, recorded a finding that, the prosecution has failed to prove beyond all reasonable doubts that, in the intervening night of 20.06.2010 and 21.06.2010 from 11.45 pm to 1.30 a.m. in the garage portion situated on the ground floor of the newly constructed house No.164, 16th Cross, J.P.Nagar, V Phase, Bengaluru, the accused Smt.Shiva rathnamma, intentionally killed her husband- Appaji, by assaulting with survey wooden clubs and thereby committed the offence of murder punishable under Section 302 of the Indian Penal Code. The learned Presiding Officer further recorded a finding that, the prosecution has failed to prove beyond all reasonable doubt that, after committing the murder of the 9 deceased-Appaji, the accused concealed the blood stained bed sheets in a polythene drum and also kept the blood stained rug in the house portion situated behind the building and thereafter, spread the news that somebody else committed the murder of her husband, with the intention of screening herself from legal punishment and thereby committed the offence punishable under Section 201 of the Indian Penal Code, as alleged. Accordingly, the learned Sessions Judge, by the impugned judgment and order dated 29.04.2013, acquitted the accused Smt.Shivarathnamma, from the offences punishable under Sections 302 and 201 of the Indian Penal Code. Hence, the present appeal is filed by the State.
7. We have heard the learned counsel for the parties to the lis.
8. Sri S.Rachaiah, learned High Court Government Pleader for the appellant contended with vehemence 10 that the impugned judgment and Order of acquittal passed by the learned Sessions Judge, ignoring the evidence of prosecution witnesses and the material objects, is contrary to the material on record, and therefore, is liable to be set-aside. He further contended that, while passing the impugned judgment and order of acquittal, the learned Sessions Judge has reached a wrong conclusion which has resulted in substantial miscarriage of justice. He further contended that the evidence of P.W.1 who has narrated the commission of offence by the accused, has stated on oath that the accused had quarreled with the deceased on 20.06.2010 at about 10.30 pm prior to the incident, and the same has been ignored. The learned Sessions Judge has not considered and appreciated the material evidence of P.Ws.4, 5 and 6 in a right perspective. There are some contradictory and inconsistent statements in the evidence of P.Ws.2 and 7 who are the main witnesses to bring home the guilt of the accused. The same has not 11 been considered by the Trial Court. He further contended that, when the evidence of P.Ws.1 and 2 clearly depicts that they heard the quarrel between the accused and deceased prior to the incident, much weightage has to be given to the same, ignoring minor omission which are not part of the case of the prosecution. Therefore, sought to allow the Criminal Appeal.
9. The accused is served and unrepresented. This Court, by the Order dated 11.06.2020 appointed Sri B. Santosh, learned counsel as Amicus Curiae, to assist the Court on behalf of the accused.
10. Sri Santosh, learned Amicus Curiae, while justifying the judgment and Order of acquittal passed by the Trial Court, contended that there are no eye witnesses to the alleged incident. There is contradiction of evidence of P.Ws.2 and 7. The accused, in her 313 statement has stated that she was all along with her 12 husband and somebody killed him in the mid night at about 1.30 am. The learned Sessions Court, considering the evidence of P.Ws. 1, 2 and 7 and the evidence of P.W.8-Dr. Anand, rightly acquitted the accused and there is no perversity in the impugned judgment and order of acquittal. He further contended that, unless and until the perversity is shown by the prosecution, this Court cannot interfere with the impugned judgment and order of acquittal, in exercise of powers under Section 378 (1) and (3) of the Code of Criminal Procedure and therefore, sought to dismiss the Criminal Appeal.
11. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is:-
"Whether the prosecution has made out a prima-facie case to interfere with the impugned judgment and order of acquittal passed by the Trial Court, acquitting the 13 accused of the offences punishable under Sections 302 and 201 of the Indian Penal Code?"
12. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material, including the original records, carefully.
13. A careful perusal of the entire material on record clearly indicates that, there are no eye witnesses to the alleged incident of murder by the accused, who is the wife of deceased Appaji. The circumstances according to the prosecution are that on the fateful night, quarrel took place between the spouse and thereafter, they slept. The other circumstance is that, immediately after the incident, the accused was not found in the house. The prosecution also relied upon the post mortem report-Ex.P.8 to contend that the death of the deceased is homicidal in nature. The prosecution relied upon the recovery panchanama-Ex.P.5, under which it is alleged 14 that the weapon of offence namely, M.O.18-survey wooden club-M.O.18 was recovered on the basis of the alleged voluntary statement of the accused as per Ex.P.24. The prosecution has failed to satisfactorily establish each and every link in the chain of circumstances as required under law, so as to hold the accused guilty of the alleged offence.
14. In order to appreciate whether the Trial Court is justified in passing the impugned judgment and order of acquittal, it is relevant to consider the evidence of the prosecution witnesses. P.W.1-Jagannath Rao, the owner of the house which was under construction, has stated that on the intimation given by P.W.2- Srikantaswami, resident of the opposite house, they lodged a complaint with the jurisdictional police, as per Ex.P.1 and accordingly, the police filed FIR as per Ex.P.16. The murder has taken place in a portion of a house reserved for garage, where the accused and the 15 deceased were staying. P.W.2- Srikantaswami is the resident of the house opposite to the place where the offence has taken place. P.W.3-Balaraj is the contractor who was incharge of the construction of the building. P.W.4-Babujaan is an attesting witness to the seizure mahazar Ex.P.4 conducted in the police station, under which, after arrest of the accused, four bangles from her hand as per M.O.14 were seized for the purpose of comparison. P.W.5-Venkataraman, is an attesting witness to Ex.P.5- recovery mahazar, under which, M.O.18-wooden club was seized as pointed out by the accused. P.W.6- Ravishekar is an attesting witness to Ex.P.2- spot cum seizure mahazar. P.W.7-Chethan is stated to be a witness to the inquest mahazar Ex.P.6 held in Kempegowda Hospital mortuary. P.W.8-Dr. Anand from KIMS Hospital has conducted the post mortem on the dead body and issued report as per Ex.P.8. Thereafter, on the request of the investigating officer, he has also issued his opinion report regarding 16 the weapons of offence namely M.O.4 and M.O.18 as per Ex.P.7. P.W.9- Bala Nayak, is the police constable, who carried the FIR to the jurisdictional Magistrate. P.W.10-Sundar Rao is the Head Constable who was in charge of the dead body for the purpose of getting the post mortem. He has collected the articles connected to the dead body from the doctor and has submitted his report to the investigating officer as per Ex.P.12. He has also carried the seized articles to the FSL and submitted his report as per Exs.P.13 and P.15 to the investigating officer. P.W.11-Umesh is the police inspector. He is the Investigating Officer, who filed the charge sheet after completion of investigation.
15. P.W.1-Jagannath Rao is the complainant. Although in the examination-in-chief he has stated about lodging of the complaint-Ex.P.1 and drawing of spot cum seizure panchanama as per Ex.P.2 by the investigating officer, in the cross-examination, he has 17 clearly stated that he has not given his statement to the police as per Exs.D.1 and D.2 relating to the alleged motive for commission of the crime.
16. Learned counsel for the State mainly relied upon the evidence of P.Ws.2 and 7. P.W.2-Srikantaswamy, is stated to be a material witness. According to the prosecution, in that night he has seen the accused soon after committing the crime of murder. According to the prosecution, this witness is very much aware of the fact that the deceased used to abuse and taunt the accused regarding her character and also that there was frequent quarrel between them, which is the motive for the commission of the murder. Though in the examination-in-chief, P.W.2 has supported the prosecution version, in the cross-examination, he has admitted that he had not given any such statement to the police as per Exs.D.3 to D.9, which are different portions in the 161 Cr.P.C. statement. 18
17. P.W.7-Chethan is stated to be close relative of the deceased. After post mortem, the dead body was handed over to P.W.7 and he is a witness to the inquest panchanama-Ex.P.6. He turned hostile to the prosecution case. In the examination-in-chief, he has stated that, at the time of inquest panchanama, accused was very much present in that place and the police had taken her to the police station. This is quite contrary to the prosecution version of the case that the accused was not seen after the alleged incident and that she was apprehended only in the evening at about 4.00 'O' clock by the police. In the cross-examination, P.W.7 has clearly stated that after he came to know about the incident, he along with his mother and other people viz., Chandrashekar, Suresh and others along with the accused came to Bengaluru from their native place Mallanayakanahalli, Mandya District, directly to the Kempegowda Hospital. This evidence leads support to the submission of the learned defence counsel that the 19 accused was no way concerned with the murder of the deceased as she was in her native place during the relevant time.
18. P.W.8-Dr.Anand has given opinion as per Ex.P.9 dated 03.11.2010, after going through FSL report dated 04.09.2010 that, the deceased Appaji had consumed alcohol and was under the influence of alcohol at the time of his death. The inquest report Ex.P.6 and the spot panchanama Ex.P.2 coupled with the post mortem report Ex.P.8 would clearly indicate that the death of the deceased was homicidal in nature.
19. P.W.10-Sundar Rao, Head Constable, who was entrusted with the responsibility of the dead body to get the post mortem done by the doctor has stated that, the inquest panchanama had been conducted at the spot of incident itself which is not in accordance with the prosecution version of the case. As can be seen from Ex.P.6, the inquest panchanama, has been conducted 20 at Kempegowda Hospital mortuary and not at the spot of the incidence. In the cross-examination, P.W.10 has stated that after the inquest panchanama, which was conducted at the spot, the body was shifted to the hospital and he reached the hospital at about 2.00 pm. The inquest panchanama-Ex.P.6 shows that it was drawn between 12.00 pm and 2.00 pm. Therefore, the very contention of the prosecution that the inquest was conducted in the hospital, appears to be highly doubtful.
20. It is relevant to state at this stage that there are no eye witnesses to the alleged incident. Therefore, it is necessary for the prosecution to establish the motive which had driven the accused to commit murder of her own husband. According to the prosecution, the motive is that the deceased used to frequently abuse and taunt the accused regarding her chastity. But, in the statement recorded under Section 313 of the Code of 21 Criminal Procedure, the accused has clearly stated that on account of consuming alcohol, her husband fell in front of the house and died. After coming to know of the death, the accused and her relative visited the police station and requested to take suitable action. Thereafter, the police took signature of the accused and requested her to visit the hospital. This statement corroborates with the statement of P.W.7.
21. It is also not in dispute that there is no clinching evidence to believe the blood stains on M.O.1- woolen rug, M.Os.2 and 3-bed sheets, M.Os.4 and 18-wooden clubs are from the body of the deceased. Although the death of the deceased appears to be homicidal in nature, there is no clinching and clear evidence to hold that it was the accused who is responsible for the death of the deceased. The evidence of P.W.8-doctor and the contents of post mortem report-Ex.P.8 would only indicate that the death of the deceased Appaji is 22 homicidal in nature. The evidence of the doctor is not sufficient to hold that it was the accused and the accused alone who is responsible for the death of the deceased.
22. Having considered the material on record and reassessing the entire material on record, doubt arises as to the very genuineness of the prosecution case itself and the benefit of doubt naturally goes in favour of the accused. The entire case of the prosecution is based on circumstantial evidence and the prosecution has failed to prove each and every link in the circumstances that would point towards the guilt of the accused beyond all reasonable doubt. It is needless to say that the suspicion, however grave it may be, cannot take the place of proof. The prosecution has failed to make out prima facie case against the accused for the offences punishable under Section 302 and 201 of the Indian Penal Code.
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23. The learned Sessions Judge, considering the entire material on record, has rightly acquitted the accused of the offences stated supra and the learned High Court Government Pleader has not made out any case to interfere with the impugned judgment and order of acquittal and has not shown any perversity in the impugned judgment and order while acquitting the accused of the offences stated supra. In the absence of any material to prove that the accused is involved in the offence and in the absence of any perversity, this Court cannot interfere with the impugned judgment and Order of acquittal, in exercise of powers under the provisions of Section 378(1) and (3) of the Code of Criminal Procedure.
24. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Kashiram v. State of M.P. reported in (2002)1 SCC 71, paragraph 21, which reads as under:
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21. We find the judgment of the High Court suffering from several infirmities. The High Court was dealing with an appeal against acquittal.
Though the High Court while hearing an appeal against an acquittal has powers as wide and comprehensive as in an appeal against a conviction and while exercising its appellate jurisdiction the High Court can reappraise the evidence, arrive at findings at variance with those recorded by the trial court in its order of acquittal and arrive at its own findings, yet, the salutary principle which would guide the High Court is -- if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sitting as a trial court its view would have been one of recording a conviction. It follows as a necessary corollary, as has been held by this Court in Chandu v. State of Maharashtra [(2001) 4 Scale 590] it is obligatory on the High Court while reversing an order of acquittal to consider and discuss each of the reasons given by the trial court to acquit the accused and then to dislodge those reasons. Failure to discharge this obligation constitutes a serious infirmity in the judgment of the High Court.
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25. Considering the entire material on record, it is suffice to observe that in a case of circumstantial evidence, the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given to the accused. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Reena Hazarika vs. State of Assam reported in (2019)13 SCC 289, paragraphs 20, 21 and 22, which reads as under: 26
20. Unfortunately neither the trial court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the appellant under Section 313 CrPC to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete non-
consideration thereof has clearly caused prejudice to the appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The accused has only to raise doubts on a preponderance of probability as observed in HateSingh Bhagat Singh v. State of Madhya Bharat [Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468 : 1953 Cri LJ 1933] observing as follows: (AIR p. 471, para 26) "26. We have examined the evidence at length in this case, not because it is our desire to depart from our usual practice of declining to re-assess the evidence in an appeal here, but because there has been in this case a departure from the rule that when 27 an accused person puts forward a reasonable defence which is likely to be true.... then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true when pitted against a weak and vacillating case is bound to raise reasonable doubts of which the accused must get the benefit. ..."
21. A similar view is expressed in M. Abbas v. State of Kerala [M. Abbas v. State of Kerala, (2001) 10 SCC 103 : 2002 SCC (Cri) 1270] as follows: (SCC p. 108, para 10) "10. ... On the other hand, the explanation given by the appellant both during the cross-examination of prosecution witnesses and in his own statement recorded under Section 313 CrPC is quite plausible.
Where an accused sets up a defence or offers an explanation, it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities. ..." 28
22. The entirety of the discussion, in the facts and circumstances of the case, the nature of evidence available coupled with the manner of its consideration, leaves us satisfied that the links in the chain of circumstances in a case of circumstantial evidence, cannot be said to have been established leading to the inescapable conclusion that the appellant was the assailant of the deceased, incompatible with any possibility of innocence of the appellant. The possibility that the occurrence may have taken place in some other manner cannot be completely ruled out. The appellant is therefore held entitled to acquittal on the benefit of doubt. We accordingly order the acquittal and release of the appellant from custody forthwith, unless wanted in any other case.
26. For the reasons stated above, the point raised in the appeal has to be held in the negative holding that the prosecution has failed to prove the commission of offence punishable under Sections 302 and 201 of the Indian Penal Code by the accused, beyond all reasonable doubts and the impugned judgment and order of acquittal passed by the Trial Court is just and 29 proper. No interference is called for by this Court in exercise of appellate jurisdiction. Accordingly, the Criminal Appeal is dismissed.
27. The Karnataka State Legal Services Authority is directed to pay a sum of `10,000/- to Sri B.Santosh, learned Amicus Curiae, for assisting the Court on behalf of the accused.
Sd/-
JUDGE Sd/-
JUDGE kcm