Karnataka High Court
State Of Karnataka vs Sri.Mallikarjun Shivanaik Naikar on 6 June, 2023
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B. PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE C.M. JOSHI
CRIMINAL APPEAL NO.100104/2020
BETWEEN
STATE OF KARNATAKA
REPRESENTED BY THE
THE POLICE SUB- INSPECTOR,
KULGOD POLICE STATION,
DISTRICT: BELAGAVI
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA
DHARWAD BENCH.
...APPELLANT
(BY SRI. M.H.PATIL, AGA)
AND
1 . SRI MALLIKARJUN
SHIVANAIK NAIKAR
AGE: 35 YEARS
OCC: AGRICULTURE
R/O.GOSABAL, TQ: GOKAK,
DIST:BELAGAVI-591277.
2
2 . SRI SHIVANAIK BHIMAPPA
NAIKAR, AGE: 64 YEARS,
OCC: PENSIONER,
R/O GOSABAL, TQ.GOKAK,
DIST: BELAGAVI 591277.
(APPEAL AGAINST RESPONDENT
No.2 IS ABATED AS PER
ORDER DATED 8-2-2022).
3 . SMT. CHAMPAVATI
W/O SHIVANAIK NAIKAR
AGE: 58 YEARS,
OCC: HOUSEWIFE,
R/O. GOSABAL, TQ: GOKAK,
DIST: BELAGAVI - 591277.
...RESPONDENTS
(BY SRI. A.B. KONI, ADVOCATE FOR R1 AND 3,
APPEAL AGAINST R2 IS ABATED V/O DATED 8-2-2022)
THIS CRIMINAL APPEAL IS FILED BY THE APPELLANT-
STATE U/S 378(1) & (3) OF CR.P.C. PRAYING TO A) GRANT
LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 23.03.2019 PASSED BY THE V-ADDL.
DISTRICT & SESSIONS JUDGE BELAGAVI IN SC NO.284/2016;
B) TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 23.03.2019 PASSED BY THE V-ADDL. DISTRCT &
SESSIONS JUDGE, BELAGAVI IN SC NO.284/2016 AND C)
CONVICT AND SENTENCE THE RESPONDENTS/ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 498A, 302
AND 201 R/W SECTION 34 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 22.02.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THROUGH VIDEO
CONFERENCING AT BENGALURU, THIS DAY, C.M. JOSHI, J.,
DELIVERED THE FOLLOWING:
3
JUDGMENT
This is an appeal by the State aggrieved by the judgment of acquittal dated 23-03-2019 passed in SC No.284/2016 by the learned V Additional District and Sessions Judge, Belagavi, which was arising out of the Crime No.71/2016 of Kulgod Police Station registered for the offences punishable under Sections 498A, 302 and 201 read with Section 34 of IPC.
2. The parties would be referred to as per their rankings before the Trial Court for the sake of convenience.
3. The brief facts of the case are as below:
A chargesheet was laid by the Circle Inspector of Mudalagi, Belagavi District, in Crime No.71/2016 of Kulgod Police Station against accused Nos. 1 to 3 alleging that the accused No.1 had married one Arati (deceased) 4 about nine years earlier to the filing of the case and after marriage, she had come to the house of the accused to lead a marital life. Accused No.2 being the father-in-law and accused No.3 being the mother-in-law of the deceased Arati were not treating the deceased Arati in a proper way. It is the case of the prosecution that, the said Arati was not having children and therefore, she was being abused and assaulted by the accused and she was subjected to physical and mental cruelty and the accused No.1 was also suspecting her character.
4. It was alleged that on 06-03-2016 at about 5.30 p.m., accused No.1 picked up quarrel with the deceased Arati and assaulted her with his hands on the left ear, chest and on her back and she lost her consciousness. It was alleged that accused No.1 carried her to bathroom in their house and tied saree to her neck and hanged her to the wooden rafter of the roof and she died. Thereafter, accused Nos. 2 and 3 came to the house and found the 5 dead body of Arati in the bathroom, on enquiry, accused No.1 told about the incident, in order to camouflage the murder, they lowered the body and gave false information to neighbors stating that the deceased Arati had suffered heart attack. The brothers of the deceased Arati came to know that some untoward incident had happened through a phone call by PW2- Bheemappa Maruti Naik, and then he enquired the accused No.1 over the phone, who informed them that deceased Arati died due to heart attack. On arrival the PW 1 and his family members saw the body of the deceased and the PW1 found ligature mark and also abrasion over the chest and therefore, he went to the Police Station and lodged a complaint as per Ex.P1 stating that the death is under suspicious circumstances. The said complaint was registered as an unnatural death and thereafter, the body was subjected to inquest procedure and postmortem. 6
5. On 23-3-2016, on the basis of the extra judicial confession alleged to have been made by the accused No.1 before the PW2- Bhimappa Maruthi Naik, the PW2 having conveyed the same to the PW1, another complaint came to be filed by PW1 before Kulgod Police Station which paved the way for further investigation in the matter. The investigating officer registered the said complaint for the offences punishable under Section 498A, 302 and 201 read with Section 34 of IPC and then arrested the accused, visited the spot, conducted the spot mahazar and ultimately, filed the chargesheet against the accused.
6. On receipt of the chargesheet, the learned Magistrate has taken cognizance, complied the provision of Section 207 of Cr.P.C. and the case was committed to the Sessions Court. The Sessions Court registered the case in SC No.284/2016, secured the accused No.1 who 7 was in the custody and accused Nos. 2 and 3 were secured who were on bail.
7. After hearing the prosecution and the accused, the charges for the offences punishable under Section 498A, 302 and 201 r/w Section 34 of IPC were framed. The accused pleaded not guilty and claimed to be tried and therefore, the case entered into trial.
8. In order to prove the guilt of the accused, the prosecution has examined 24 witnesses as PWs-1 to 24, got marked 45 documents as Exs.P1 to P45 and MO 1 and 2. After closure of the evidence, the Trial Court recorded the statement of the accused under Section 313 of Cr.P.C. wherein, the accused No.1 gave his written statement and also produced certain documents concerning the treatment rendered to the deceased Arati during her life time. The other incriminating circumstances put across to the accused were denied. 8
9. After hearing the arguments, the Trial Court framed four points for its consideration as below:
"1. Whether the prosecution proves beyond reasonable doubt that the accused No.1 married deceased Arati about 9 years back and after the marriage, said Arati came to the house of the accused in order to lead her marital life and the accused No.1 being the husband, accused No.2 being the father in law and accused No.3 being the mother in law of deceased Arati, as said Arati could not begot the child they were abusing and assaulting her and also subjected her to physical and mental cruelty and the accused No.1 also suspecting her character and thereby the accused persons have committed the offence punishable u/Sec. 498A r/w Sec.34 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt that on 06-03-2016 at 5.30 PM the accused No.1 picked up quarrel with deceased Arati and assaulted her with his hands on her left ear, chest and on her back due to which Arati lost her consciousness and the accused No.1 thereafter in order to murder Arati carried her to bathroom situated in his house and tied saree to her neck and thereafter hanged her with the said Saree to the wooden rod of the roof of the bathroom where Arati died and thereby the accused No.1 has committed the offence punishable U/sec.302 r/w sec. 34 of IPC?
3. Whether the prosecution further proves beyond all reasonable doubt that when the accused No.2 and 3 came to the house, they fond the dead body of Arati in bathroom and when they enquired about it with the accused No.1, the accused No.1 told them that he has murdered Arati and hanged 9 her unconscious body in bathroom and the accused No. 1 to 3 in order to cause disappearance of evidence of offence, they have given false information stating that deceased Arati has suffered heart attack and thereafter the accused persons taken deceased to the hospital and brought her back to their house and also the accused persons covered the mark found on the neck of deceased with saree and thereby the accused persons have committed the offence punishable u/sec.201 r/w sesc.34 of IPC?
4. What order?"
10. Answering all the points in the negative, it proceeded to acquit the accused by the impugned judgment.
11. Aggrieved by the said judgment, the State has come up in this appeal. In the appeal, it was contended that the Trial Court is not justified in disbelieving the evidence of the witnesses only on the ground that they were relatives of the complainant and the deceased and appreciation of the evidence by the Trial Court are not proper. It is contended that the accused had stated before the complainant and others that the deceased had died due to heart attack, which was contrary to the 10 medical evidence and later they have tried to contend that the deceased died by committing suicide. It is contended that the Trial Court ought to have convicted the accused considering the evidence of PWs 1 to 8 and 22 and failure to consider the same has resulted in mis- carriage of justice.
12. The appeal was admitted. Notice was issued to the respondents-accused. The accused have appeared through their counsel. The appeal against respondent No.2 is dismissed as abated vide order dated 8-2-2022. The Trial Court records have been secured.
13. We have heard the arguments by Sri M.H.Patil, learned Additional Government Advocate, appearing for the appellant-State and Sri. A.B. Koni, learned counsel appearing for accused Nos. 1 and 3. Perused the Trial Court records.
14. The points that arise for our consideration are as below:
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(i) Whether the prosecution has proved beyond reasonable doubt that after the marriage of the accused No.1 with the deceased-Arati, accused were abusing and harassing the deceased on the ground that she has not begotten a child, by demanding jewelry and money and by suspecting her character and thereby treated her with cruelty within the meaning of Section 498A of IPC?
(ii) Whether the prosecution has proved beyond reasonable doubt that the accused No.1 has committed the murder of deceased Arati by hanging her to the rafter of the bathroom of his house and the accused Nos. 2 and 3 assisted the accused No.1 to camouflage the death of the deceased-Arati was due to heart attack and thereby accused No.1 committed an offence punishable under Section 302 and accused Nos. 1, 2 and 3 committed an offence punishable under Section 201 r/w 34 IPC?
15. The case of the prosecution as it unfolds from the chargesheet papers is that, the accused No.1 was married to the deceased Arati somewhere during 2007 and thereafter, she joined the accused No.1 and led marital life for nearly about 4 years. Thereafter, accused 12 started harassing her on the ground that she was not having any children and thereby started abusing her and assaulting her. So also, the accused were demanding money and gold ornaments from the deceased and treated her with cruelty and the accused No.1 also suspected her character and thereby she was being subjected to cruelty within the meaning of Section 498A of IPC.
16. It is the case of the prosecution that on 06-03-2016, at about 5.30 p.m., the accused No.1 and the deceased returned from the funeral of their relative and then the accused No.1 picked up quarrel with the deceased Arati and assaulted her with his hands on her left ear, chest, on her back and as a result, she fell unconscious. The accused No.1 with an intention of committing the murder of deceased Arati, carried her to the bathroom and tied a saree around her neck and hanged her to the rafter of the roof of the bathroom. As a 13 result, Arati died. Thereafter, accused Nos. 2 and 3 returned to their house and found the dead body of Arati and on enquiry, accused No.1 confessed that he had committed the murder. All the accused together removed the body from the noose and accused No.1 wanted to project it as a suicide and accused Nos. 2 and 3 hatched a plan that the neighbors and the relative should be informed that the deceased had died due to heart attack so that it would not attract the police and therefore the body of the deceased be taken to the hospital. Accordingly, the neighbors were called by the accused and the body of the deceased was taken to the hospital of PW18-Dr.Sanju Laxman Hanji, in a tempo cruiser belonging to PW11. PW18 Dr.Sanju Laxman Hanji, on examining the body of the deceased informed that she had already died and therefore, body of the deceased was brought back to the house of the accused. The accused kept the body in a sitting position, tied saree around the neck of the body and tied it to the pegs (Goota), so that 14 the body was erect and nobody could see the injuries on the neck of the deceased. The neighbors came to know about the incident and PW2 was informed about the same and the PW1-Satish Shankar Naik, on coming to know about the incident through PW2-Bhimappa Maruti Naik, called the accused No.1, who informed that the deceased had suffered heart attack and had died. Thereafter, the PWs- 1, 2 and other family members of the deceased came to the house of the accused. It is the case of the prosecution that the accused did not allow PW1 and his family members to touch the body of the deceased and PW1 having suspected the said conduct, removed the saree which was around the neck of the deceased and found the injuries on the neck as well as on the chest and therefore, he lodged a complaint to the police as per Ex.P1.
17. In Ex.P1, he had only mentioned about the suspicious death of the deceased Arati. The complaint 15 was received by PW20-Ambanna Chidambar Boopennavar, Head Constable, and he registered the same as a case of unnatural death on the morning of 07-03-2016. He also conducted the inquest mahazar of the body of the deceased as per Ex.P11 and sent the body for postmortem. The autopsy of the body of the deceased was conducted by PW22-Dr.Mahesh Balappa Koni, and he gave a report as per Ex.P35 and opinion as per Ex.P37. Thereafter, PW20- Ambanna Chidambar Boopennavar, Head Constable, had handed over the investigation to the Higher Officer i.e. PW24-Halappa Yallappa Baladandi. Thereafter, much investigation was not done by him till 23-03-2016.
18. It is the case of the prosecution that on 22-03-2016, the accused No.1 had met the PW2- Bhimappa Maruti Naik and disclosed about the crime committed and thereby made an extra judicial confession. Thereafter, the PW2 came to PW1 and disclosed about 16 the said confession made by accused No.1. The PW1 went to the police station and lodged his second complaint which is as per Ex.P7. PW24- Halappa Yallappa Baladandi, registered the said complaint for the offence punishable under Sections 498A, 302, 201 r/w Section 34 of IPC and launched the investigation and then handed over the further investigation to PW23-Baramappa Siddappa Lokapur.
19. During the investigation, PW23, visited the spot i.e. the house of the accused, conducted the mahazar as per Ex.P8 between 12.30 p.m. to 1.00 p.m. Then he arrested the accused Nos. 1 to 3, recorded their voluntary statements and at their instance, again visited the house of the accused and conducted the disclosure mahazar as per Ex.P12 between 6.35 p.m. to 8.35 p.m. on the same day. He also seized MO 1 and 2, which are the sarees used for hanging and tying the body of the deceased so that it is kept erect. Thereafter, he recorded 17 the statements of the witnesses and sent MO 1 and 2 for examination and the opinion of the Medical Officer and after securing his opinion, filed the chargesheet.
20. Before venturing into the factual aspects of the case on hand, it is necessary to note that the law relating to an appeal against an acquittal is settled. The latest decision of the Apex Court in the case of Ravi Sharma vs. State (Government of NCT of Delhi) and Another1 chronicles the consistent stand taken by the Apex Court over a long period of time. It is relevant to note that the decision in the case of Chandrappa vs. State of Karnataka2 in para No.42 lays down the following principles;
"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;1
(2022) 8 SCC 536 2 (2007) 4 SCC 415 18 (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal.
Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 19
21. Thereafter, the Apex Court in the case of Jafrudheen vs. State of Kerala3 in para 25 held as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
22. All the above decisions along with many other precedents have been considered elaborately by the Apex Court in Ravi Sharma's case and it has reiterated those principles and therefore, it is evident that the Appellate Court should be cautious while reversing a judgment of 3 (2022) 8 SCC 440 20 acquittal. The reason behind the said principle is that the accused has the benefit of innocence as a basic principle of a criminal jurisprudence. Certainly, the accused has the benefit of acquittal by the Trial Court which had the occasion to peruse and observe the demeanor of the witnesses and the manner in which they had spoken before the Court. The confidence of the Trial Court arises on the basis of the deposition of the witnesses who physically appeared before it. That advantage is not before the Appellate Court and therefore, keeping in view these principles, the case on hand needs to be appreciated by this Court.
The Arguments:
23. Learned Additional Government Advocate, appearing for the appellant-State contended that initially, a case of unnatural death was registered based on the complaint filed by PW1- Satish Shankar Naik. Thereafter, when the accused No.1 confessed before PW2-Bhimappa 21 Maruti Naik, who in turn, informed the PW1, second complaint came to be lodged by PW1-Satish Shankar Naik, which set the law in motion regarding the crime. He contends that the evidence of PWs 1, 2,6,7,8,15,16 and 17 clearly show that all these witnesses have spoken about the cruelty committed by the accused on the deceased. It is submitted that the nature of cruelty spoken by these witnesses in respect of the demand for jewelry and cash, regarding failure on the part of the deceased to beget any children and byway of suspecting her character.
(b) Further, learned Additional Government Advocate submits that, there was a panchayat held involving the elders of the village, wherein, the accused were advised to behave properly or if they could not treat the deceased properly, the accused No.1 may divorce her. The accused had promised to behave properly and therefore, deceased Arati had returned to her 22 matrimonial home. He contends that the deceased was staying in the parental home for nearly two years and then the conciliation happened and as a result, she returned to the matrimonial home and submitted that these aspects clearly establish that the accused No.1 treated the deceased with cruelty within the meaning of Section 498A of IPC.
(c) Further, learned Additional Government Advocate submits that the accused Nos. 1 to 3 and the deceased had been to the funeral of a relative on 06-03-2016 and at about 5.30 p.m. in the evening accused No.1 and the deceased returned to home where there was a quarrel and the accused No.1 had slapped and assaulted the deceased and she became unconscious and then he hanged her to the rafter in the bathroom with the help of a saree. After return of the accused Nos. 2 and 3, the accused No.1 in order to depict the death of the deceased was due to heart attack, took the body of 23 the deceased to the hospital of PW18-Dr.Sanju Laxman Hanji and then he informed the same to the relatives and neighbors. He submits that accused Nos. 1 to 3 have given a voluntary statement before the Investigating Officer and as a result, the saree which was used for the commission of the offence has been seized under the mahazar. It is submitted that accused had also informed the PW2, who in turn, informed to PW1 that the deceased died due to heart attack. This circumstance that the accused had depicted the death of deceased Arati was due to heart attack is not properly explained by the accused and as such, an adverse inference has to be drawn against them. The PW18-Dr. Sanj Laxman Hanji, is categorical in saying that the accused had brought the body of the deceased saying that it was a heart attack. This also makes the accused to explain their conduct.
24. The second prong of the argument of learned Additional Government Advocate is that, there is no 24 reason to dis-believe the evidence of PW2-Bhimappa Maruti Naik, who speaks about the extra judicial confession. Said extra judicial confession had led to recovery of MO 1 and 2 and therefore, the extra judicial confession is proved by the prosecution.
25. The third prong of the argument of learned Additional Government Advocate is that, the prosecution witnesses include the relatives of the deceased as well as the neighbors. Obviously, neighbors have turned hostile. When the evidence of PWs 1, 2, 6,7,8, 15 to 17 is clear and cogent, their evidence should have been believed by the Trial Court.
On these grounds he submits that the Trial Court has erred in acquitting the accused and therefore, the appeal deserves to be allowed by convicting the accused.
26. Per contra, learned counsel appearing for the accused Nos. 1 and 3 submits that the prosecution version is full of contradictions and improvements. He 25 submits that there is marked improvement from Exs.P1 to P7 and there is nothing to show the offence of cruelty in Ex.P1. Regarding cruelty, he submits that the place of the panchayat is not consistently established by the prosecution. He submits that the conciliation was in the house of the PW1 according to some of the witnesses, but it was in the Form House of PW15-Subhash Bhimappa Naik, as per the evidence of PWs- 15 and 16. It is submitted that not a single incident of cruelty within the meaning of Section 498A of IPC has been brought out by the prosecution and an omnibus statement is made by the witnesses that the accused No.1 was suspecting the character of the deceased and there was demand for dowry and abuse were hurled as the deceased was not begetting child. He submits that there is absolutely no material to show that the deceased was treated with cruelty. He also submits that the suicide is established by the P.M. report and heavy burden is on the prosecution to show that it is a homicidal death. Obviously, there are no 26 eye witnesses to the incident and the P.M. report do not mention that there were any ante mortem injuries on the body of the deceased, except the ligature marks.
27. Further, learned counsel for the accused submits that in the cross- examination of the PW18- Dr. Sanju Laxman Hanji, the suggestion that accused have represented the death of deceased to be suicide was denied. It is also submitted that the entire prosecution story depends upon the extra judicial confession alleged to have been made by the accused No.1 before the PW2- Bhimappa Maruti Naik. The cross- examination of the PW2 shows that his brother had gone to Gokak where the accused No.1 had made the confession appears to be a doubtful one. He points out that, PW2-Bhimappa Maruti Naik, in order to go to Saundatti, need not have gone to Gokak. Therefore, the alleged extra judicial confession made after about 15 days of the incident is not corroborated by any cogent evidence and the false 27 implication of the accused cannot be ruled out. It is also pointed that MO 1 and 2 were allegedly recovered after 16 days of the incident and therefore, much importance cannot be attached to the same. There is nothing on record to show that MO 1 and 2 alone were used for murdering the deceased. Therefore, he contends that the alleged extra judicial confession being uncorroborated version, the involvement of the accused in the alleged murder or homicidal death of the deceased has not been established by the prosecution. It is submitted that the homicidal death of the deceased Arati is not proved by the prosecution and prima facie it appears to be a suicidal case.
28. Further, learned counsel for accused also points out that PWs 1 and 2 categorically admitted that they have the support of local politician and therefore, a false implication after 16 days of the incident on the basis of the extra judicial confession and initiation of the case on 28 the basis of the such information gathered by the PW2 resulting in the arrest and alleged seizure of MO 1 and 2 are of doubtful circumstances and these circumstances do not establish conclusively that accused alone have committed the alleged offences. Therefore he submits that the judgment rendered by the Trial Court is proper and no interference is called for in the same. The Evidence:
29. The PW1-Satish Shankar Naik, happens to be the brother of the deceased Arati who filed the complaint as per Ex.P1 on 07-03-2016 and also heard the alleged confession made by the accused No.1 from PW2, lodged the second complaint as per Ex.P7. Therefore, his evidence is of vital importance in the case.
The PW6-Gourish Shankar Naik, happens to be the another brother of the deceased Arati and brother of PW1-Satish Shankar Naik. He only came to know about the incident later. But his evidence is relevant in respect 29 of the cruelty meted out to the deceased and the panchayat which was held.
PW7-Shakuntala Shankar Naik, happens to be the mother of the deceased, who had deposed on similar lines as that of PWs 1 and PW6.
PW8-Akkatai Maruti Naik, happens to be the aunt of PW1, who was in the knowledge of the panchayat which was held to advise the accused to behave properly with the deceased.
PW15-Subhash Bhimappa Naik, PW16-Venkappa Ramappa Saranaik and PW17-Ramu Yellappa Naik, are the relatives of PWs-1,6 and 7, who have spoken about the alleged cruelty meted out against the deceased.
PW2-Bhimappa Maruti Naik, is another relative of the PW1, who speaks about the alleged confession statement made by accused No.1 before him at Gokak. 30
PW3-Suvarna Bhoopal Patil, is the panch for the inquest mahazar which is at Ex.P11.
PW4-Ravi Somanagouda Patil and PW5- Mallappa Laxman Naik, happen to be the panchas of the spot panchanama dated 23-3-2016, which is at Ex.P8. They were also the panchas for the mahazar which was conducted at the instance of the accused, who produced the ligature saree at MO 1 and 2. The said mahazar is at Ex.P12.
PW9-Suresh Basappa Naikar and PW10-Parappa Balappa Naikar, are the neighbors of the accused, who arranged the cruiser vehicle of PW11 for taking the deceased to the hospital of PW18-Dr. Sanju Laxman Hanji. Both these witnesses have not supported the case of the prosecution.
PW11-Kalloleppa Bhimappa Bandiwaddar, happens to be driver- cum- owner of cruiser vehicle in which the deceased was shifted to the hospital. He says that he 31 took the deceased Arati to the hospital where she was declared as dead and as such, he brought her back. He does not say anything about the cause of the death.
PW12-Bhimanagouda Rayanagouda Patil, happens to be the another relative of the accused and he has not supported the case of the prosecution. According to the prosecution, it was the PW12 who had informed PW1 about the alleged heart attack suffered by the deceased Arati on 6-3-2016, at the instance of the accused No.1.
PW13-Satyappa Ramappa Hosatti and PW14-Ashok Durgappa Bandiwaddar, are the panchas of the mahazar of the place where the body of the deceased was kept in the house of the accused on 07.03.2016 soon after the inquest mahazar. Both these witnesses have turned hostile to the prosecution case.
PW18- Dr. Sanju Laxman Hanji, says that he examined the deceased when she was brought to his hospital by the accused and he only found that she was 32 dead and informed the same to the accused. But he had not examined the neck and other parts of the body of the deceased. He says that history which was informed to him was heart attack.
PW19-Virupaxi Chandappa Pattar, happens to be the Engineer of Public Works Department, who has prepared the sketch of the spot as per Ex.P31 on the instructions by the investigating officer.
PW20-Ambanna Chidambar Boopennavar, happens to be the Head Constable who registered the case on receiving the complaint as per Ex.P1 under Section 173 of Cr.P.C. as a case of unnatural death, went to the spot, conducted the inquest mahazar as per Ex.P11, sent the body to the postmortem etc. PW21-Mohan Ramchandra Pete, happens to be the Head Constable, who is the carrier of MO 1 and 2 to the Medical officer for his opinion and also who showed the spot of the incident to the PW19 to prepare the sketch. 33
PW22-Dr. Mahesh Balappa Koni, is the Medical Officer, who has conducted postmortem of the dead body of the deceased Arati and gave report as per Ex.P35 and also gave the opinion in respect of the ligature material as per Ex.P37.
PW23-Bharamappa Siddappa Lokapur, happens to be the Investigating Officer, who has conducted much of the investigation subsequent to the filing of the second complaint by the PW1 and ultimately, filed the chargesheet.
PW24-Halappa Yallappa Baladandi, happens to be the PSI, who initially registered a case after receiving the second complaint as per Ex.P7 and then at the directions of PW23 arrested the accused and produced them before the PW23.
30. Thus, it is the evidence of PWs 1, 2, 6,7, 8, 15, 16 and 17 which are of the importance regarding the offence of cruelty alleged against the deceased. The 34 neighbors of the accused though were examined, have turned hostile to the prosecution case and therefore, their evidence is not of much relevance. The evidence of PW22-Dr. Mahesh Balappa Koni, gains importance to ascertain the nature of the death of the deceased and coupled with the evidence of PW2 and PW1, it is relevant to ascertain about the death of the deceased to be a homicidal death. No doubt, the evidence of other relatives of the deceased i.e., PW6, 7, 8 and 15 to 17 is also relevant in this aspect to the extent of their say regarding the conduct of the accused. Further, the evidence of PW18 Dr. Sanju Laxman Hanji, is also of some relevance to assess the conduct of the accused as to whether they had depicted the death of the deceased was due to heart attack or hanging. With these backgrounds, we proceed to examine the testimony of the prosecution witnesses vis-a-vis, the offences alleged against the accused. 35 Whether Homicidal?:
31. The first aspect to be considered by us is, whether the death of the deceased Arati was a homicidal death or not? The evidence of the PW22- Dr.Mahesh Balappa Koni, gains importance in this regard. In his evidence as well as in the Post Mortem report produced at Ex.P35, he states that on examining the body of the deceased, he found the following injuries:
"Abrasion measuring 4 cm x 3 cm seen over chest. Ligature mark seen over upper part of anterior part of neck measuring 11 inches x 2 inches extending backwards and upwards upto occipital with ligature mark more prominent on left nape of neck. Internal examination shows bruising of neck muscles with fracture of superior horn of thyroid cartilage and greater horn of hyoid bone on left side with haematoma seen. Above injuries are antimortem in nature."
32. He only speaks about the ligature marks which were found on the neck of the deceased. According to him, the death was due to asphyxia as a result of hanging. Therefore, his evidence alone is not sufficient to 36 conclude that the deceased Arati had suffered a homicidal death. Suicidal death cannot be ruled out.
33. The PW1-Satish Shankar Naik, in his examination- in- chief has stated that the marriage of the deceased Arati was performed with the accused No.1 in the year 2007 and for three years their relationship was cordial. Thereafter, the accused used to harass her saying that she is incapable of conceiving a child and such harassment was physical as well as mental. Thereafter, he states that the accused were also harassing her demanding money, gold and silver from her parental house. Therefore, the deceased had returned to the parental house about three years prior to her death. She stayed in her parental house for two years, and then accused No.1 had also come to the parental house of the deceased and stayed there for some days. The accused No.1 was also harassing the deceased by suspecting her character and therefore, PW1 and the accused Nos. 2, 3, 37 PW6, 14 to 16 and some other elders had conducted a panchayat in his house and advised the accused to behave properly or else to divorce the deceased. The accused had assured to look after the deceased well and then the deceased had returned to matrimonial house of the accused. Thereafter, they had again started suspecting the character of the deceased Arati, which she used to inform him.
34. He further states that on 6-3-2016, CW 17 i.e. PW12-Bhimanagouda Rayanagouda Patil, called him at about 7.45 p.m. and enquired whether the PW1 had received any phone call from the accused. The PW12 informed the PW1 to call the accused and on calling the accused, it was informed that deceased had suffered heart attack and therefore, she was taken to hospital and she had died. On visiting the house of the accused, he found that the body of the deceased was in the sitting position and saree was tied to her neck and tied to two 38 pegs on both sides (so that the body would not fall). When PW1 and his family members were mourning and weeping, the accused did not allow them to touch the body and therefore, they were suspicious and on removing the saree around the neck of the body of the deceased, a ligature mark was found and there was also abrasion over the chest. He states that he suspected that the death was not due to heart attack and therefore, he went to the Kulgod P.S. and lodged a complaint as per Ex.P1. In Ex.P1 also he has stated the above facts and had expressed his doubt about the cause of the death of the deceased. Then he says that on 22-3-2016, PW2- Bhimappa Maruti Naik, had been to Gokak and met the accused No.1 and on enquiry, the accused No.1 alleged to have stated that on 6-3-2016, when they had returned from the funeral of a relative, there was a quarrel and he had assaulted the deceased on her cheeks, ears, chest etc., and she fell down and then he had tied saree around her neck and then hanged her and committed the 39 murder. Thereafter, the accused No.2 had removed her from the noose and taken the body to the hospital saying that there was a heart attack and false rumor was spread by them in order to hide the murder. On getting such information from PW2, the PW1 went to Kulgod Police Station and lodged a second complaint as per Ex.P7. He had identified the Ex.P7.
35. The perusal of Ex.P1 shows that there were no details regarding the ill-treatment etc., and only the nature of the injuries found on the body of the deceased and that the accused were preventing PW1 and his family members from touching the body of the deceased were mentioned. Whereas, in Ex.P7, the PW1 had mentioned that the accused were treating the deceased with cruelty since she had not begotten a child and the cruelty was physical as well as mental. It also mentions that off late, the accused was suspecting the character of the deceased. The demand of gold and silver was also 40 mentioned in the complaint at Ex.P7. The panchayat etc., conducted with the help of the elders is also mentioned in the complaint at Ex.P7.
36. In the cross- examination of the PW1, it was elicited that accused No.2 was working in KSRP as an Assistant Sub-Inspector at Shivamogga when the marriage of the accused No.1 had taken place. The accused Nos. 1 to 3 were staying in a quarters at Belagavi and even after the transfer of the accused No.2 to Shivamogga, the other accused were staying in Belagavi itself. He denies the suggestion that the deceased was mentally depressed since she had not begotten the child. He admits that the accused No.1 had provided treatment to the deceased with Dr. Kadalagekar at Gokak. He also admits that the Doctor had informed that the deceased could never conceive a child. However, he denies that the Doctor had told that there is no necessity of further treatment and that the deceased 41 could not have a child and therefore, she was depressed and ultimately, she has committed the suicide. The suggestion that the accused were demanding a sum of Rs.2,50,000/- and 2 ½ tolas of gold is being disclosed by him for the first time before the Court, as admitted by him. He admits that an effort was made to provide a job to the accused No.1, when he used to stay in the house of the PW1. But he has volunteered to state that the accused was not consistent in going for the work. The suggestion that the accused and the deceased had returned to Gojabala (the place of the residence of accused) in the year 2014 is admitted by him.
37. Regarding the incident, he states that he went to Gojabala at 12 in the midnight on hearing the death of the deceased and he denies that the body was kept in the sleeping position. He pleads ignorance that the accused No.2 had informed Kulgod police station that the deceased had committed suicide and denies that the 42 police had come to Gojabala during that night itself. An effort is made that a false complaint has been filed by the PW1 using the influence by the local minister who is known to the PW1. Though the PW1 admits acquaintance with the Minister, he denies that the he has influenced with the police to register a case.
38. Regarding the alleged confession by accused No.1 before the PW2, it is elicited that on 22-3-2016 at about 11.00 p.m., PW2 met him (PW1) in his house and informed about the confession. Then in the early morning on 23-3-2016, he went to Kulgod Police station and lodged the second complaint.
39. PW2-Bheemappa Maruti Naik, states on the same lines as stated by PW1 regarding the marriage, the deceased not conceiving a child and that the accused were treating the deceased with cruelty and about the advises rendered to the accused by the elders. He also states that along with PW1 he had been to the house to 43 the accused on the night on 06-03-2016 on hearing about the death of the deceased and he also speaks about the body of the deceased being kept in sitting position with the help of the saree around her neck and being tied to two pegs on both sides. He also speaks that, accused not allowing them to touch the deceased and later found that there was ligature mark around the body and then PW1 filing the complaint etc. His evidence is on the same lines as stated by PW1.
He states that on 22-3-2016, he had to go to Saudatti and on the way, he had been to Gokak, where he met the accused No.1 at Naka No.1. He states that accused No.1 was called by PW2 and he informed about committing the murder of the deceased Arati. He states that, accused No.1 told him that there was a quarrel between the deceased and the accused No.1 and he had assaulted her and thereafter, he had tied saree around her neck and hanged her. In order to hide the murder, 44 the body was taken to the hospital saying that it was a heart attack.
In the cross-examination, PW2 admits that the accused had provided the treatment to the deceased from Dr. Kadalagekar of Gokak for not conceiving the child and then doctor saying that the deceased was incapable of conceiving a child.
40. It is pertinent to note that, except single omnibus suggestion that the accused had not ill-treated the deceased, there is no cross- examination regarding the panchayat which was held to advise the accused and that the accused demanding money, gold, etc. and she being suspecting of her character by the accused. Thus, the alleged panchayat which was held in order to advise the accused is not denied in the cross- examination. Further, in the cross- examination, it is elicited that on 22-3-2016, accused No.1 alone was present at Gokak and accused No.1 did not run away after seeing PW2. It 45 is elicited that he returned to his village at about 8.30 p.m. and he met PW1 at about 8.15 p.m. and informed about the confession made by the accused No.1 to all the family members and PW1. It is also elicited that he accompanied the PW1 to Kulgod police station on the next morning and the police did not enquire him on that day. The suggestion that accused No.1 had not met the PW2 at Gokak and he had not confessed about the commission of the murder is denied by him.
41. PW3-Suvarna Bhoopal Patil, happens to be the relative of PW1 and she states that she was present when the inquest mahazar was prepared by the police. She has identified her LTM on Ex.P11. Evidently, Ex.P11 and the evidence of PW3 show that the body of the deceased had ligature mark and an abrasion on the chest. In the cross- examination, she has denied that she is not present at the time of inquest mahazar.
46
42. PW6-Gourish Shankar Naika, happens to be the brother of the PW1. He states about the harassment meted out by the accused to the deceased on the same lines as stated by PW1. He categorically states that the harassment was in respect of the deceased not begetting a child and regarding the gold and cash which they were demanding from the parents of the deceased. He also states that the deceased had stayed in the parental house for about 3 years and accused No.1 had also stayed with her for about 2 years in their house and then he states about the panchayat which was held to advise the accused. His evidence is exactly similar to that of the PW1. He states about the visit to the house of the accused on hearing about the death of deceased Arati and then, suspecting the death, PW1 filing the complaint to the police as per Ex.P1 and thereafter on 22-3-2016 PW2 intimating about the confession made by accused No.1 and then PW1 filing the second complaint to the police as per Ex.P7. In the cross-examination also, his 47 evidence is exactly similar and he denies that the deceased was depressed on account of the medical reports that she was unable to conceive a child. In his cross- examination, the suggestion that there was no such demand for money, gold jewelry and suspecting the character of the deceased are denied by him. Very interestingly, in his cross- examination, he states that he and his family members reached Gojabala at about 12 in the mid night on 06-03-2016 and he had come to know that deceased died due to suicide. This say by PW6 is contrary to the case of the prosecution that accused had informed them about the heart attack. However, he denied the suggestion that the deceased had committed suicide on account of her depression for not conceiving a child.
43. PW7-Shakuntala Naika, happens to be the mother of the deceased Arati and PWs 1 and 6. She states that for three years, the relationship was cordial 48 between the accused No.1 and the deceased and deceased was unable to conceive a child and there was harassment on account of not conceiving a child and that there was demand for money and gold. She also states that there was a panchayat where the accused were advised to treat the deceased in a proper manner and states that such panchayat was in her house. She also states that the accused used to suspect the character of the deceased and the deceased used to inform her about the ill-treatment meted out to her. Then she says about the phone call and visiting the house of the accused, finding the ligature mark on the neck of the deceased and PW1 filing the complaint suspecting the death of the deceased. Her evidence is exactly similar to that of the evidence of PWs 1 and 6 in this regard. She says about the PW2 informing about the confession made by accused No.1 and then PW1 filing the complaint on 23-3-2016. 49
In the cross- examination, she admits that when she visited the house of the accused on the night of 06-03-2016, she came to know that the deceased had committed suicide. Curiously, there is no cross- examination regarding the demand for cash and gold by the accused, suspecting the character of the deceased by the accused No.1 and the cruelty meted out for the reason of her not conceiving the child.
44. The PW8-Akkatai Naika is aunt of the deceased and her evidence is also similar to that of the PW7. Again, it is relevant to note that her evidence is also almost similar to that of the evidence of PW7 regarding the cruelty meted out to the deceased regarding the demand for money, gold etc., suspecting the character of the deceased and the deceased not conceiving a child.
In the cross-examination, though the fact that the deceased committed suicide is suggested, there is no cross examination regarding the cruelty meted out to the 50 deceased. However, she says that she do not know what is the quantum of the money which was demanded by the accused and she denies that deceased has committed suicide on account of the depression of not conceiving a child.
45. PW15-Subhash Bhimappa Naik, happens to be the person who was present at the time of panchayat held. He states that for about 5 years after the marriage, their relationship was cordial and thereafter, the deceased had returned to parental house as she could not tolerate the cruelty meted out to her. Then there was a panchayat and in the panchayat, the accused had assured that the deceased would be treated properly. His evidence regarding the death of the deceased etc., is hearsay and therefore, it is not of much relevance.
In the cross-examination, it was elicited that he was elderly person in the panchayat and one Venkappa Ramappa Sarnaik (PW 16) had called him. The said 51 panchayat was in his farm house. It is elicited that the accused were demanding 2 tolas of gold and cash of Rs.2,50,000/-. It is elicited that there was no talks regarding the money.
46. PW16-Venkappa Ramappa Saranaik, happens to be another person who participated in the said panchayat and he states that the accused were ill-treating the deceased and therefore, there was a panchayat and the ill-treatment was regarding the demand for gold. Accused had assured that they would look after the deceased properly and even then they had continued to harass her. He did not speak about the harassment meted out for not conceiving the child and therefore, he was partially treated as hostile.
In the cross- examination by learned Public Prosecutor, he admits the same. In the cross examination by the defence, he states that the panchayat was held in the house of PW1.
52
47. PW17-Ramu Yallappa Naik, states that the accused were demanding gold and were ill-treating deceased and therefore, there was a panchayat and the accused were advised to behave properly and they had assured to behave properly.
In the cross examination, he states that the ill- treatment was regarding the deceased not getting a child and he denies that he came to know that the accused were providing treatment to the deceased at Gokak.
48. PW18- Dr. Sanju Laxman Hanji, states that on 06-03-2016 at about 7.30 p.m. the accused No.2 and others had brought Arati @ Gayatri in cruiser vehicle stating that she had suffered heart attack and therefore, he went to the vehicle itself and found that she was not breathing and he could not find the pulse and therefore, he informed them that the said Arati @ Gayatri had died. He says that clothes were covered on neck and chest and therefore, he could not see the injuries. 53
In the cross examination, it is suggested that the accused No.2 and others had informed that the deceased had committed suicide by hanging herself. He has denied the said suggestion.
Analysis and conclusions regarding homicide.
49. The prosecution contends that the accused No.1 had slapped the deceased and had hit her on the ears, chest and when she fell unconscious, the deceased was hanged with the help of a saree to the rafter in the roof and killed her. The evidence of PW22-Dr. Mahesh Balappa Koni, and the PM report given by him as per Ex.P35 shows that the deceased had suffered injuries, namely, abrasion measuring 4 cm x 3 cm seen over chest. Ligature mark seen over upper part of anterior part of neck measuring 11 inches x 2 inches extending backwards and upwards upto occiput with ligature mark more prominent on left nape of neck. Internal examination showed bruising of neck muscles with 54 fracture of superior horn of thyriod cartilage and greater horn of hyoid bone on left side with haematoma. The injuries were ante mortem in nature.
50. It is evident that there are no eye witnesses to the incident. The prosecution heavily relies upon the circumstantial evidence in order to establish the homicidal death of the deceased Arati. It is relevant to note that none had seen the accused No.1 and the deceased coming together to his house at 5.30 p.m., after the funeral of their relative. It is not the case of the prosecution that the accused and deceased were seen together lastly before the death of the deceased Arati. The PW22 stating that the deceased had sustained the above injuries, comes to the conclusion that the cause of death of the deceased was asphyxia as a result of hanging. There is no evidence to show that the deceased suffered asphyxia due to the strangulation. Obviously, the ligature mark was extended backwards and upwards and 55 was more prominent on left nape of the neck. This clearly suggests that the cause of death was due to hanging, but there is no strangulation by a third party human intervention.
51. The cross- examination of PW22 discloses that he is unable to say that the abrasion over the chest of the deceased and that hanging may be suicidal also. Further, it is elicited that the deceased Arati was well built and stout lady. Significantly, the evidence of PW2 do not discloses that the deceased had any injuries on her cheek or the ear, face etc., There were no injuries on the back also. Therefore, the reason for she becoming unconscious and then the accused No.1 tying saree around her neck and hanging her appears to be doubtful circumstance. The evidence shows that except an abrasive injury on the chest measuring 4 x 3 cm there were no other injuries which could have been caused by way of assault. When the P.M. report do not discloses that there was any 56 assault on the body of the deceased and she had ante mortem assault injuries on her, it is difficult to conclude that the accused had assaulted her and therefore, she had suffered the abrasive injuries. It is also pertinent to note that there is absolutely no evidence to show that abrasive injuries could have been caused by assaulting her with hands. Abrasion may be caused when the body comes into contact with a rough surface. Therefore, when the injury is not proved to be by way of assault by hand, it cannot be said that the deceased had become unconscious before she was hanged to death by accused No.1. In other words, the homicidal death of the deceased is not established conclusively. The possibility of the suicide cannot be ruled out.
52. The next question that arises for consideration would be, whether the alleged voluntary confession of accused No.1 would be of any help to prosecution to 57 prove the nature of death of the deceased Smt. Arati and the identity of the alleged culprits?
53. The case of the prosecution to prove complicity of the accused No.1 is based on the extra judicial confession statement. The prosecution contends that the accused No.1 had voluntarily confessed that he had committed the murder of the deceased on the evening of 06-03-2016. The prosecution heavily relies upon the evidence of PW2 in this regard. PW2, as noted supra is the relative of PW1 and the deceased. He states that he had accompanied the PW1 to the house of accused on 06-03-2016 and he had also got suspicion about the cause of death of the deceased Arati and he had accompanied PW1 to the Kulgod Police station to lodge a complaint. Then he says that on 22-3-2016, he had been to Gokak on the way to Saundatti and accused No.1 met him at Gokak at Naka No.1 and confessed about the commission of the murder of the deceased. The question 58 arises is, why the accused No.1 had confessed to the PW2? There is insufficient evidence as to the nature of the relationship between the accused No.1 and the PW2. Nowhere, PW2 says that accused No.1 was his friend and accused No.1 had reason to confess about the incident to him.
54. The law relating to extra judicial confession is settled. Any confession is termed to be a very weak form of evidence. The Apex Court in the case of Sahadevan and another Vs. State of Tamilnadu 4, lays down the principles governing the extra judicial confession in para 16 as below:
"16.Upon a proper analysis of the above- referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.4
(2012) 6 SCC 403 59 The Principles
i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
ii) It should be made voluntarily and should be truthful.
iii) It should inspire confidence.
iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
vi) Such statement essentially has to be proved like any other fact and in accordance with law."
55. Thus, the confessions to be reliable are to be corroborated by other evidence. The credibility and the evidentiary value of the extra judicial confession increases only if it is corroborated by other evidence and the chain of circumstances.
56. In the case on hand, the circumstances as stated by PW2 or PW1 do not show that there was any 60 reason for the accused No.1 to make a confession before PW2. It is not known why the accused No.1 made a confession before PW2 when the accused No.1 knew that PW2 had accompanied PW1 to the Kulgod Police Station on the night of 06-03-2016. Therefore, this circumstance that there was reason for the accused No.1 to make a confession before PW2 is not convincing.
57. The second circumstance contended by the prosecution is that, accused Nos. 1 to 3 had brought the deceased to the clinic of PW18-Dr. Sanju Laxman Hanji, stating that the deceased had suffered a heart attack. Though PW18 says that accused had brought the deceased to his hospital with a history of heart attack, he found that the deceased was no more and therefore, he sent them back. He does not say that he had seen any injuries on the body of the deceased. He was suggested that the accused had represented to him that the deceased had committed the suicide. Therefore, the only 61 circumstance that is available on record is that, the accused had represented the PW18 that the deceased had suffered heart attack. But this circumstance alone cannot be sufficient to reach upon an irresistible conclusion that accused had committed the murder and therefore, they had taken the deceased and represented to PW18 that she had suffered heart attack. The circumstance that accused No.1 had represented to PW18 about the heart attack and there being no heart attack, cannot be a conclusive circumstance to establish the involvement of the accused.
58. It is also relevant to note that PW2 had allegedly met the accused No.1 at Gokak on 22-3-2016. It is not known whether there was any reason for the PW2 meeting the accused No.1 at Gokak after about 16 days of the incident. When the accused No.1 had not made any confession for 16 days and only after 16 days, the accused No.1 made a confession appears to be 62 doubtful. There are no other surrounding circumstances which are brought on record to show that there was any reason for the accused No.1 to make confession to PW-2. Moreover, the PWs- 1, 2 and 6 have admitted that one of the local politician is known to them. Very importantly, the investigating officer does not come across any circumstances from the morning of 07-03-2016 till the morning of 23-03-2016. Though the PW1 had expressed doubt about the cause of death of the deceased, no investigation was done for these 16 days until, PW1 filed the second complaint as per Ex.P7. It is not known as to why the investigating officer had not conducted any investigation till then, except, conducting the spot mahazar and the inquest mahazar as per Exs.P29 and P11. Therefore, the alleged homicidal death of the deceased Arati surfaces only on 23-03-2016 after the alleged confession statement of the accused No.1 before PW2. Under these circumstances, the confession statement having not been corroborated by any other 63 evidence cannot be held to be sufficiently proved the guilt of the accused for the offence under Section 302 of IPC.
59. Apart from this, the motive for commission of murder of the deceased Arati nowhere surfaces in the prosecution case. It is relevant to note that either PW1, 2,6, 7 or anybody else show that accused No.1 had motive to commit the murder of the deceased in order to contract a second marriage etc. Simply, there was a quarrel between accused No.1 and the deceased; and accused No.1 committing the murder do not gel well. Therefore, we do not find any reason to hold that the alleged confession statement made by the accused No.1 before the PW2 is believable when there is no other circumstance which supports this view. There is no other evidence to show that the accused No.1 had made a confession statement before the PW2. If the alleged confession statement before PW No.2 is eschewed, there is absolutely no material on record to show that accused 64 had committed the murder of the deceased Arati. The evidence of PW18 does not sufficiently establish that accused No.1 committed the murder of the deceased when the motive for commission of such offence is not brought on record. Hence, we come to the conclusion that the prosecution has failed to establish that the death of the deceased Arati was a homicidal death and that the accused No.1 alone had committed the said offence. When the involvement of the accused No.1 is not established, the involvement of the accused Nos. 2 and 3 is also to be absolved in so far as the offences under Sections 302, 201 of IPC is concerned.
60. The next question which arises is, Whether there is material evidence to show that the accused had treated the deceased with cruelty?
61. As discussed supra, it is the evidence of PWs 1,2, 6 to 8, 15 to 17 which is of importance in this 65 regard. Evidently, except the oral statements of these witnesses, there is no other material which could have been gathered by the investigating officer during investigation. Therefore, it is only the oral testimony of these witnesses which gains importance. It is also relevant to note at this juncture itself that, the Trial Court has not discussed the evidence regarding the offence under Section 498A IPC separately. It has conjointly discussed with the evidence and ultimately comes to the conclusion that none of the charges levelled against the accused have been proved by the prosecution.
62. The case of the prosecution was that the accused were treating the deceased with cruelty and they harassed her on three counts as stated above and there was a panchayat to advise the accused which was not fructified, and as a result, accused had committed the murder of the deceased. So far as the murder of the 66 deceased is concerned, the aforesaid discussions establish that there is insufficient evidence to show that it was a culpable homicide amounting to murder. But so far as the offence under Section 498A IPC is concerned, it is distinct and the nature of the evidence is also peculiar. It is with this back ground that the evidence has to be appreciated.
63. Evidently, the PWs 1,2, 6 to 8 have stated that after about 3 years of the marriage, the accused started harassing the deceased saying that she has not begotten the child. These witnesses have also stated that the accused were demanding money, gold and silver ornaments. These witnesses also stated that accused No.1 was suspicious about the chastity of the deceased. These witnesses have also stated that there was a panchayat involving the elders including PWs 15 to 17 and the accused were advised. These witnesses had informed the accused either to treat the deceased in a 67 proper way or to divorce her. They also state that the accused had assured to treat the deceased Arati well. However, it is stated that they did not keep up their promise and the incident of murder of the deceased clearly establish their contentions. Now the question is, whether the above three allegations and conciliatory efforts involving PWs 15,16 and 17 would establish the offence under Section 498A of IPC?.
64. PWs 1, 6 and 7 in their examination- in- chief say that the relationship between the deceased and accused No.1 was cordial for about three years after the marriage and thereafter, the accused were harassing her. Such harassment was on account of not begetting the child, demand of cash and jewelry and therefore, the deceased had returned to the parental house. Therefore, the evidence is categorical in saying that deceased stayed in the parental house for about 2 years. Thereafter, for some time, accused No.1 also came to 68 the parental house of the deceased and stayed with her for some days. This aspect that the deceased was staying in the house of PW1, 6 and 7 is not denied by the accused. The cross- examination of these witnesses does not show that the deceased had not come to the parental house for two years. This admission of the accused that the deceased stayed in the parental house for about two years indicate that the relationship was not cordial.
65. It is also relevant to note that, if the relationship is cordial, there was no question of holding a panchayat involving the elders of both the sides. Therefore, the say of PWs 1, 6 and 7 gain importance so far as the allegations of cruelty are concerned.
66. The evidence of PWs 15-Subash Bhimappa Naik shows that the deceased Arati had returned to the parental house in view of the harassment meted out by the accused. After two years, there was a panchayat in the presence of the elders and the accused had assured 69 that the deceased Arati would be treated properly and therefore, she was sent to the house of the accused. In the cross- examination, he states that he was called by Venkappa Ramappa Saranaik i.e. PW16 to act as pancha. He states that the panchayat was in his Farm House. In the cross- examination, it is also elicited that the harassment was in respect of the demand for 2 ½ tolas of gold and sum of Rs.2,50,000/- in cash. He states that there was no talks regarding the cash and the gold, but the accused were asked to treat the deceased in a proper way. He denies that he has not stated about the demand for money and jewelry in his statement before the police. Similarly, the evidence of PW16-Venkappa Ramappa Saranaik, also shows that there was demand by the accused concerning cash and jewelry and he was the part of conciliatory efforts. He also says that the harassment was in respect of deceased not begetting child and that the accused doubted her chastity. The cross- examination discloses that he is a relative of the 70 PW1. This elicitation shows that he requesting the PW15 to act as panch is probable. However, his cross- examination shows that the panchayat was in the house of PW1.
67. PW17- Ramu Yallappa Naik, who is aged about 68 years, states that when the deceased had returned to the parental house for about two years, he was part of the panchayat and the deceased was sent to the house of the accused. He also says that the harassment was regarding the gold and jewelry and also the accused were physically harassing her. In the cross- examination, it is elicited that he dispute was in respect of the deceased not begetting the children. He says that the panchayati was in the Form House of PW15.
68. Thus the evidence of PWs- 15, 16 and 17 clearly establish that there was panchayati and the place of the panchayati as stated by the PW1, 6,7 and 8 and PW16 was in the house of the PW1, as per PWs 15 and 71 17, it was in the farm House of PW15. Thus, the discrepancy in respect of the place of panchayat is pointed out by the learned counsel for the accused saying that it is a material discrepancy and as such, the alleged panchayati cannot be accepted. Simply because, PWs 15 and 17 differ with the other witnesses as to the place of panchayat, it cannot be said that their entire evidence has to be brushed aside. The fact remains that they participated in the panchayat and the accused were advised to treat the deceased in a proper way. This fact remains established by the prosecution. Moreover, the fact that the deceased had returned to the parental house for about 2 years is stated by all these witnesses and this aspect is not proved to be false. On the other hand, there is no cross examination on this aspect to PWs 1, 6 and 7. On the other hand, the cross- examination of PW1 shows that accused No.1 also states that the deceased was in her parental house for considerably long time. Under these circumstances, the 72 alleged cruelty meted out to the deceased by the accused is proved.
69. There is another angle that has to be looked into. The accused contend that the deceased committed suicide. According to them, the suicide was due to the depression that the deceased had not conceived a child. If the deceased was treated well with all the love and affection and the accused had understood the deceased in the proper manner and had supported her in coming out of the alleged depression, she would not have committed the suicide. The very fact that the deceased committed suicide is also an indication that the harassment was of such a nature that it has driven the lady to commit suicide. In other words, the fact that there was a suicide does not rule out the harassment meted out to the deceased by the accused.
70. Out of three types of the harassment alleged as against the accused, the fact that the accused No.1 had 73 stayed in the parental house of the deceased and that the PW1 had also arranged for a job, but he was not adhering to any of such jobs gains importance. This shows that the accused No.1 was not financially capable of maintaining a family. As a result, the contention that he was demanding money and jewelry from the parents of the deceased gains an impetus. The accused No.2 was serving in the Police department at Shivamogga and his family i.e. accused Nos. 1 and 3 and brother of accused No.1 were staying in the police quarters at Belagavi. It is also an admitted fact the accused No.2 retired in the year 2011 and thereafter, they were staying in a rented house belonging to one Shankar Patil at Belagavi.
71. It is also relevant to note that, PWs.1,2,6,7 and 8 have clearly stated that all the accused were subjecting the deceased to cruelty. Though the accused No.1 was not financially capable of maintaining the family, the accused Nos. 2 and 3 could have supported the 74 deceased. Obviously, the allegations of doubting the chastity of the deceased was attributed to the accused No.1. But the demand for money and jewelry and doubting the chastity of the deceased was not prevented by the accused Nos. 2 and 3. It has also come in the evidence of the witnesses that the accused Nos. 2 and 3 were taunting the deceased that she has not conceived a child. Even though the evidence on record in the form of the documents produced by the accused at the time of their statement under Section 313 of Cr.P.C. discloses that the deceased was taken to Dr. Kadalgekar, of Gokak, it do not obviate the fact that the accused were taunting the deceased for not conceiving a child. The above witnesses have alleged that all the accused were treating the deceased with cruelty on all the three counts. Further, PWs 15, 16 and 17 who are the independent witnesses and claimed to be the participants in the panchayat as panchas have stated that all the accused were advised by them to behave properly and 75 the accused had assured that they would take care of the deceased in a proper manner. It is significant to note that the evidence of PW1, categorically shows that accused Nos. 2 and 3 were ill-treating the deceased stating that the deceased has not conceived a child and also that they were demanding her to bring the cash and jewelry. Under these circumstances, merely because the accused had taken the deceased to Dr. Kadalgekar, for examination and treatment, it does not mean that they were not taunting the deceased for not conceiving a child. But on the contrary, it shows that even after providing the treatment to the deceased, they were not treating her in a proper way. In fact, they augmented the cruelty meted out to the deceased.
72. It is important to note that though the accused Nos. 2 and 3 were residing at Shivamogga, the accused No.2 had retired in 2011 and the deceased died on 6-3-2016. This period is relevant to establish that 76 accused Nos. 2 and 3 were also in the knowledge of the ill-treatment meted out to the deceased and they also had assured the PWs 15,16 and 17 that the deceased would be looked after in a proper way. The evidence also shows that after the panchayat in the presence of PWs 15,16 and 17, all the accused and the deceased had returned to her matrimonial home and even thereafter, the cruelty continued resulting in the death of deceased Arati.
73. We have also considered the question, whether the provisions of Section 306 of IPC would be applicable? But the decision of the Apex Court in the case of Ramesh Kumar vs. State of Chhattisgarh5 lays down that, merely because, the accused is found guilty under Section 498A of IPC, he should not necessarily be held to be guilty under Section 306 of IPC on the basis of the same evidence.
5 (2001) 9 SCC 618 77
74. The requirement of Section 306 of IPC is totally different. 'Abatement of suicide' as envisaged under Section 306 of IPC involves the intention in the mind of the accused to instigate the deceased to commit suicide. In the case on hand, there is neither such evidence which shows that the accused instigated the deceased to commit suicide nor that there was any proximity regarding the harassment and to commit the suicide. Therefore, obviously, the provisions of Section 306 of IPC are not applicable.
75. A perusal of the judgment of the Trial Court shows that it has not bestowed its attention regarding the ingredients of Section 498A of IPC and the evidence available on record concerning the said offence. It has discussed the evidence adduced by the prosecution and by a omnibus reasoning, came to the conclusion that the offence under Section 302 and 201 of IPC are not proved and jumped to the conclusion that the offence under 78 Section 498A of IPC is also not proved. The ingredients of Section 498A of IPC with reference to the evidence available on record was not considered by the Trial Court.
76. In view of the above discussions, we come to the conclusion that the prosecution has failed to establish the offence punishable under Sections 302 and 201 read with Section 34 of IPC committed by any of the accused. However, the prosecution has proved the offence under Section 498A of IPC as against all the accused. But during the pendency of the appeal, accused No.2- Sri Shivanaik Bhimappa Naikar, who is respondent No.2 in the present appeal has died and the appeal against him stands abated as per order dated 8-2-2022. Therefore, the appeal against respondent No.2/accused No.2 do not survive. Hence, the points raised by us are answered accordingly.
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77. For the aforesaid reasons, the judgment of the Trial Court so far as it relates to the acquittal of accused Nos. 1 and 3 for the offences punishable under Sections 302 and 201 of IPC has to be confirmed. However, the acquittal of accused Nos.1 and 3 for the offence punishable under Section 498A of IPC cannot be sustained and therefore, they have to be convicted for the said offence. Hence, the following:
ORDER [i] The appeal is partly allowed.
[ii] The appeal as against accused No.2 has abated.
[iii] The judgment in SC No.284/2016 dated 23-3-2019 passed by the Sessions Court insofar as the acquittal of the accused Nos. 1 and 3 for the offences punishable under Sections 302, 201 of IPC is hereby confirmed.80
[iv] The judgment in SC No.284/2016 dated 23-3-2019 passed by the Sessions Court insofar as the acquittal of the accused No.1 and 3 for the offence punishable under Section 498A of IPC is hereby set aside and the accused No.1 and 3 are convicted for the said offence.
To hear on sentence, the matter is passed over.
Sd/-
JUDGE Sd/-
JUDGE tsn* 81 HEARING ON SENTENCE
78. We have heard learned counsel appearing for the accused Nos.1 and 3 and the learned AGA appearing for the State on sentence.
79. Learned counsel appearing for the accused Nos.1 and 3 submits that considering the age of the accused Nos.1 and 3 who are aged about 43 years and 61 years respectively, leniency may be shown by imposing minimum possible sentence. On the other hand, the learned AGA submits that the accused Nos.1 and 3 be punished with maximum punishment as they had tortured and ill treated the deceased Arati without any fault from her side.
80. The sentencing policy requires that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake.
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81. In the instant case, though according to the prosecution, there were more number of accused persons alleged to have been involved in the commission of the crime, however, it could able to prove the guilt as against accused No.1 -Mallikarjun Shivanaik Naikar and accused No.3- Smt. Champavati w/o Shivanaik Naikar of causing cruelty punishable under Section 498A of IPC.
Section 498A of IPC prescribes the punishment with imprisonment for a term which may extend to three years and shall also be liable to fine. As such, keeping in mind the facts and circumstances of the present case and other mitigating factors canvassed by the learned counsel for accused Nos.1 and 3, we proceed to pass the following:
ORDER ON SENTENCE [1] For the offence punishable under Section 498A of the Indian Penal Code, 1860, the accused No.1 - Sri Mallikarjun Shivanaik Naikar, age: 35 83 years, Occ: Agriculture, R/o Gosabal, Tq: Gokak, Dist: Belagavi- 591277 and the accused No.3 - Smt. Champavati W/o Shivanaik Naikar, Age: 58 years, Occ: House wife, R/o. Gosabal, Tq: Gokak, Dist:
Belagavi -591277, are sentenced to undergo Simple Imprisonment for a period of two years and shall also be liable to pay a fine of Rs.20,000/- (Rupees Twenty Thousand Only) each, in default of payment of fine, they shall undergo an additional simple imprisonment for a period of three months each;
[2] Out of the fine amount of Rs.40,000/-, a sum of Rs.30,000/- be paid to the mother of the deceased Arati as compensation under Section 357 of Cr.PC;
[3] The period of imprisonment, if any, undergone in judicial custody, by the accused Nos.1 and 3, during the pendency of the present case, be given set-off under Section 428 of the Code of Criminal Procedure, 1973;
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[4] The accused No.1 - Sri Mallikarjun
Shivanaik Naikar, and accused No.3-
Smt. Champavati W/o Shivanaik Naikar, shall
surrender before the Sessions Judge's Court, within thirty (30) days from today;
[5] A free copy of this judgment be furnished to the accused Nos.1 and 3 immediately by the Registry.
Registry to transmit a copy of this judgment to the Sessions Judge's Court, forthwith along with its records, for doing the needful in the matter in securing the accused Nos.1 and 3 for serving the sentence and in accordance with law.
(sd/-) JUDGE (sd/-) JUDGE tsn*