Karnataka High Court
Havanna S/O Chandram Salotagi @ ... vs The State Of Karnataka on 10 December, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL No.200092/2015
BETWEEN:
HAVANNA S/O CHANDRAM SALOTAGI
@ MARAYAGOL
AGE : 41 YEARS, OCC: AGRICULTURE
R/O BHUYYAR, TQ.SINDAGI
DIST. VIJAYAPUR
(SOLE ACCUSED)
... APPELLANT
(BY SRI SHIVANAND V. PATTANSHETTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
R/BY ADDL.SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH
(THROUGH INDI P.S.
DIST.VIJAYAPUR)
... RESPONDENT
(BY SRI GURURAJ V. HASILKAR, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
29.08.2015 AND 10.09.2015 RESPECTIVELY PASSED BY THE II
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ADDL. SESSIONS JUDGE, VIJAYPUR IN S.C.NO.75/2014 AND
ACQUIT THE APPELLANT/ACCUSED.
THIS APPEAL HAVING BEEN HEARD ON 29.11.2021 AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment of conviction and order of sentence passed in S.C.No.75/2014 dated 29.08.2015 and 10.09.2015 by the II-Additional Sessions Judge, Vijayapura questioning the conviction order passed against the appellant for the offence punishable under section 304 Part-I of IPC.
2. The factual matrix of the case is that, the prosecution has initiated proceedings against this appellant who is the husband of deceased Sunanda and both were residing in the farm house situated in R.S.No.41/1B of Bhuyyar village along with their children. The appellant herein had developed illicit relationship with one CW.16, Vimalabai W/o Sharanappa Talwar of the same village for the last three years prior to this incident and visiting her 3 house and also addicted to alcohol. In this regard, the victim Sunanda was quarrelling with him to give up that habit and also the relationship with the said woman for which the accused was angry. On 15.02.2014, at about 6.30 p.m., when he had come to the house with drunken condition, his wife started abusing him and reiterated not to continue the relationship with that woman and leave the bad vice of drinking alcohol and again quarrel was started and having fed up with the behavior of this accused, wife went inside the house and told accused that she is going to consume poison and opened the cap of the bottle and when she was about to consume the poison, at that time, accused became angry and told her that he would kill her and why she wants to die by consuming poison and saying so, he took up the farmers leather chappal and assaulted on her head, face and other parts of the body and pushed her to the ground and throttled her neck and committed the murder and hence, offence under section 302 of IPC is invoked. The appellant/accused did not plead guilty and claims for trial. Hence, the prosecution relied upon the 4 evidence of PW.1 to 17 and got marked documents at Exs.P.1 to 35 and MOs.1 to 4. The accused was subjected to give statement under section 313 of Cr.P.C., and thereafter having considered the material on record, the Trial Court convicted the accused and sentenced him for the offence punishable under section 304-I of IPC and sentenced him 10 years imprisonment with fine of Rs.10,000/-. Being aggrieved by the same, the appellant has filed the present appeal before this Court.
3. The main contention of the learned counsel for the appellant before this Court is that none of the witnesses have supported the case of the prosecution and the trial Court has committed an error in convicting the accused/appellant. P.W.1 is the brother of the deceased Sunanda filed the complaint and P.W.2 and 3 are the relatives of deceased and P.W.4 is the brother of the accused. P.W.5 is the wife of the elder brother of accused. P.W.6 is the neighboring land owner of accused and P.W.7 is the father of the deceased Sunanda and P.W.8, 9, 10 5 are the independent witnesses. P.W.11 and 12 are the sons of the accused and deceased Sunanda. P.W.13 is the concubine of the accused as per prosecution. P.W.14 is the neighbourer of P.W.13 and all these material witnesses for the prosecution have turned hostile and there is nothing on record or any incriminating evidence against the appellant herein. However, the Trial Court came to the conclusion that the evidence of hostile witnesses cannot be thrown out and convicted the appellant. The Trial Court ought to have come to the conclusion that Investigating officer has conducted a tainted investigation and the Court below has also not put the incriminating circumstances to the appellant and over all consideration of the material available on record and the reasoning assigned by the Trial Court against the probability and in criminal case it requires the prosecution has to prove the case against the accused/appellant beyond reasonable doubt. The very principle of beyond reasonable doubt has not been considered by the trial Court. Hence, it requires interference of this Court.
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4. The learned High Court Government Pleader for the State would submit that the Court below has taken note of medical evidence and offence is a heinous offence and Court also taken note of Exs.P.30, P.32, P.34 and so also FSL report. He contended that she had suffered the head injury on account of assault by the husband with hard object i.e., leather chappal which is used for the agricultural purpose. The accused has not explained under section 106 of the Indian Evidence Act, 1872 (for short 'the Act') since murder was taken place in the house of the accused. The accused took the defence of alibi and the same has not been proved and the Trial Court particularly in paragraph-32 given the finding and the same cannot be reversed.
5. Having heard the respective counsels and on perusal of the material available on record and also the grounds urged in the appeal, this Court has to reappreciate the oral and documentary evidence and on perusal of 7 material on record the following points arise for consideration before this Court:
i. Whether the Trial Court committed an error in coming to the conclusion that the prosecution has proved the case beyond reasonable doubt that this appellant/ accused had committed the murder of his wife?
ii. What order? Point No.i
6. Having heard the respective counsels and also grounds urged in the appeal, this Court has to re-appreciate the evidence available on record. Having perused the prosecution evidence it shows that the prosecution mainly relied upon the evidence of P.W.1 to 17 out of that P.Ws.11 and 12 are the sons of deceased and also this appellant. It is also important to note that P.W.1 is the brother of the deceased. P.W.7 is the father of the deceased and these are the material witnesses to prove 8 the case against the accused. It is to be noted that complaint averment disclose that P.W.1 on coming to know about his sister has sustained injury, he went to the hospital and found his sister who had suffered the injuries and she was not in a position to speak, when she was taken to the hospital for higher treatment, she was declared as dead and thereafter the body was taken to the house of her husband for cremation. On enquiry, the sons of deceased sister P.Ws.11 and 12 have narrated that there was a quarrel between the father and mother and when mother tried to consume poison, at that time, the accused/appellant assaulted her with hard object of his chappal, as a result, she has sustained injuries and neighbourers took her to the hospital. But witnesses who have been examined before the Trial Court particularly P.Ws.11 and 12 sons of the deceased have not supported the case of the prosecution. No doubt, P.W.11 is aged about 10 years at the time of giving evidence and he has turned completely hostile and in the cross-examination though suggestions are made in keeping the case of the 9 prosecution, nothing is elicited and it is suggested that his father taunted her saying that not to take the poison, he himself would kill her and assaulted his mother and the said suggestion was denied. P.W.12 son of the deceased, who is aged about 9 years at the time of giving evidence, has completely turned hostile and nothing is elicited in the cross-examination of P.W.12. These are the material witnesses. The other witness P.W.1 is the brother of the deceased and he speaks about he come to know about his sister struggling for life and the neighbours have taken his sister to the hospital and asked him to come to the hospital and immediately he reached the hospital and found that his sister was under treatment and she was not in a position to talk, but he claims that accused was not there in the hospital and doctor told them to take her to the Indi Hospital and when she was taken to the Indi hospital, the doctor examined and declared that she has been brought dead. He also says that he enquired his sister's sons, as to what had happened. They told that they had gone out along with sheep for grazing and when they 10 returned, they found that their mother was struggling for life in front of the house and they screamed and their uncle came and took her to the hospital. This witness was important and treated hostile. But in the cross-
examination, he admits photographs. Exs.P.1 to 7 but denied all other suggestions made in keeping the case of the prosecution and nothing is elicited. The other material witness is P.W.7 who is the father of the deceased and he also speaks with regard to performing the marriage of his daughter and he also spoken nothing about the act of the accused and this witness also treated as hostile. When he was subjected to cross-examination in keeping the case of the prosecution nothing is elicited. Having perused these material witnesses, particularly the sons of the deceased, brother and father of deceased, though there is incriminating evidence against the accused, the prosecution relied upon the evidence of the doctor, P.W.16 who conducted the post mortem examination and he has spoken with regard to the nature of injuries and found those injuries were anti-mortem in nature. The cause of 11 death was not given immediately and FSL report was awaited and on receipt of FSL report, he has given the final opinion in terms of Ex.P33. The cause of death is due to injuries sustained over head and frontal aspect of neck due to hard and blunt object causing acute respiratory failure. It is also evident that if a person is assaulted with MO.2 Chappal, the injury observed on the deceased are possible and he gave the opinion by examining MO.2, in terms of Ex.P.34. He admits in the cross-examination, that he did not mention the measurement of the injury and colour of the injury and also number of nail marks on either side of the neck. There was no fracture of skull, the external injuries mentioned by him are simple in nature. There was no contusion injury on the frontal aspect of the neck and acute respiratory failure is not heart attack. If a person is assaulted with MO.2, it may leave imprints and he cannot definitely say, that MO.2 could have caused all these injuries and that there may be other material object as suggested.
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7. Having considered the medical evidence, no doubt in chief-examination he says that if a person is assaulted with MO.2 like chappal, the injury found on the body of the deceased could be caused. But in the cross- examination he admits that he has not mentioned the measurement of the injury, colour of the injury and number of nail marks and there was no fracture of skull and there was only simple injury. Apart from that, he categorically says that if a person is assaulted with MO.2 chappal, it may leave the imprints on the injured and no such imprints are found on the dead body. Further he admits that he cannot definitely say that MO.2 could have caused all these injuries.
8. Having considered the medical evidence also and in order to prove the case of the prosecution that MO.2 was used and those injuries would have been caused with MO.2, there is no definite evidence. No doubt, in the post mortem report injuries are mentioned and even external injuries are mentioned, though it is the case of 13 the prosecution that she was strangulated, there was no evidence of strangulation and final opinion was given in terms of Ex.P33 wherein it is mentioned that cause of death is due to injuries sustained over head and frontal aspect of neck, due to hard and blunt object, causing acute respiratory failure. It was mentioned that there was no fracture of skull and injuries are simple in nature, there is no definite opinion causing acute respiratory failure and no such imprint marks were found on either side of the neck of the dead body by MO.2. When these are the bleak evidence available before the Court, particularly children, father and brother of the deceased have not supported the case of the prosecution. The Trial Court convicted the accused only on the ground that plea of alibi has not been proved. No doubt, the accused took the defence that he was not in station on the date of the incident, it is settled law also once the accused takes the plea of alibi, he has to prove the plea of alibi and the same cannot be a ground to convict the accused in the absence of incriminating evidence against the accused. Having perused the 14 statement under section 313 of Cr.P.C., of accused, it is rightly pointed out by the appellant's counsel that nothing was put to him as deposed by the witnesses against the accused, since those witnesses have not given any incriminating evidence against the appellant. But in the statement under section 313 of Cr.P.C., he claims that he went to Indi hospital after her death and body was brought to the village and he was also there and none of the witnesses have spoken anything about this appellant in their evidence. Only P.W.3 says that she saw one injury on the forehead of deceased and he claims that no such injury was found. Having considered the statement of the accused under section 313 of Cr.P.C., only evidence of P.W.16 doctor regarding the injuries found on the victim put to the accused and he denies as false, but no explanation was given by the accused with regard to sustaining injury by his wife. The Trial Court while convicting the accused in paragraph No.27 discussed that prosecution could not directly prove the motive for quarrel between the deceased and accused. But that is not 15 significant for the simple reason that the prosecution is able to prove the crime purported by the accused in order to come to such a conclusion, no materials are found and it is also observed that in order to prove illicit relationship, the Court cannot expect direct evidence and no doubt it can be proved by circumstantial evidence. P.W.13, according to the prosecution, with whom the accused had illicit relationship, was also examined and nothing is elicited in the cross-examination of P.W.13, to come to the conclusion that there was illicit relationship between her and the accused. No doubt, the prosecution relied upon the evidence of Investigating Officer, but in the absence of witnesses who have witnessed the incident of assault made by this accused, the Trial Court ought not to have come to the conclusion that this accused only committed the offence of murder and further observed in the statement of accused under section 313 of Cr.P.C., that it is not just a formality and further observed that he has pleaded the defence of alibi, he should have stated specifically where exactly he has gone, when he received 16 the death message of his wife and when he returned to the house and after returning why he did not lodge the complaint and participate in the investigation. But in the case on hand, all these circumstances ought to have explained by the accused when there was no incriminating evidence against him. I have already pointed out that none of the witnesses have spoken anything about the act of the accused and the Court cannot draw an inference or presume the things in order to convict the accused. It is settled law that while convicting the accused, the prosecution has to prove the case beyond reasonable doubt and not on preponderous of probability and the discussion made by the Trial Court in paragraph-25 that accused has not explained amounts only to preponderous of probability, since he was apprehended after giving the complaint and when he was not found, no doubt, the incident has taken place in the farm house and it is important to note that witnesses particularly P.W.11 and 12 in their evidence, stated that mother was struggling but it is not their evidence that their father was there in the 17 house, at that time both of them deposed that when mother was struggling, they screamed and their uncle came to the spot and took her to the hospital. When such being the evidence available before the Trial Court, the Trial Court ought not to have convicted the accused, in the absence of any corroborative piece of evidence. No doubt, when the death was taken place in the farm house belonging to the accused, he has to explain under section 106 of the Act. In order to explain under section 106 of the Act, also there must be positive evidence that he was there in the house on the date of the incident when deceased sustained injuries. In order to prove the said fact, he was in the house itself on that day itself, no material is placed by the prosecution. It is also important to note that according to the prosecution, the injured had sustained the injuries which are found in the dead body and injuries were sustained by the sister of the complainant and the same came to his knowledge at around 7.30 p.m., and also in the complaint, time is mentioned as 6.30 p.m., and though in the complaint, 18 Ex.P1, it is stated that incident has taken place at 6.30 p.m., and the same was witnessed by P.Ws.11 and
12. It is clear that incident has taken place at 6.30 p.m., and I have already pointed out that it is not in night and also Ex.P3, goes to disclose that it was a thatched hut and there are chances of people can enter the thatched hut and there was no permanent fixture door and the same is also located in the agriculture land and Exs.P.2 and P.3 depict the place where the body was found and also thatched shed. Hence, when these are the material available on record, the Trial Court ought not to have come to the conclusion that this accused only committed the murder. No doubt, the Trial Court has relied upon several judgments of the Hon'ble Apex Court while convicting the accused but each facts of the case has to be taken note of whether the principles laid down in the judgments are applicable to the facts and circumstances of the case. In the case on hand, I have already pointed out that there is no incriminating evidence against the accused and the Trial Court relied upon the evidence of P.Ws.11 and 12 19 particularly in the evidence, it is stated that when his mother's body was brought back, his father was not there but he did not know where he had gone and also he did not see whether his father accompanied his mother along with his uncle to the hospital. The said evidence is not a positive evidence but he says that he did not see whether his father has been accompanied his mother along with his uncle while taking her to the hospital. But in the statement of the accused under section 313 of Cr.P.C., he categorically says that he went to the hospital. The Trial Court in paragraph No.26 also observed that the disturbing feature in this case, as evident from the conduct of the accused and conduct of the witnesses, who have falsely deposed that this accused and wife were very cordial, which virtually falsified from the conduct of the accused, who did not get disturbed on the homicidal death of his wife and do not raise his little finger by lodging any complaint. No doubt, the accused has not lodged any complaint but that cannot be a presumption that he only committed the murder. I have already pointed out that it is 20 important to note where his house is located and also the occurrence of the alleged incident, anyone can enter the thatched hut but only on the ground that he has not given any complaint, the Court below ought not to have come to the conclusion that conduct of the accused is not believable and so also the witnesses have not supported the case of the prosecution. In order to come to the conclusion that witnesses have falsely deposed that accused and his wife were very cordial but no evidence before the Court that their relationship was not cordial. Hence, the Trial Court has committed an error in coming to the conclusion that this accused has only committed the murder. No doubt, the Trial Court brought the offence of the accused under section 304 Part-I of IPC unless the prosecution has proved the case beyond unreasonable doubt, whether it is 302 of IPC or under section 304-I of IPC does not arise when in the case on hand, there is no incriminating material and the trial Court drawn the inference looking into the conduct of the accused. I am of the opinion that the Trial Court has committed an error in 21 convicting the accused for the offences punishable under section 304 Part-I of IPC and hence, it requires interference of this Court. Accordingly, I answer point No.i in affirmative.
Point No.ii
9. In view of the discussion made above, I pass the following:
ORDER The appeal is allowed.
The judgment of conviction and order of sentence passed in S.C.No.75/2014 dated 29.08.2015 and
10.09.2015 by the II-Additional Sessions Judge, Vijayapura for the offence punishable under section 304 Part-I of IPC is hereby set aside.
Sd/-
JUDGE VNR