Karnataka High Court
Kishor S/O. Sundarrao Bommaji vs The State Of Karnataka on 27 September, 2024
Author: B.M. Shyam Prasad
Bench: B.M. Shyam Prasad
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NC: 2024:KHC-D:14328-DB
CRL.A No. 100611 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
CRIMINAL APPEAL NO. 100611 OF 2022 (C)
BETWEEN:
KISHOR S/O. SUNDARRAO BOMMAJI,
AGE: 33 YEARS, OCC: PAINTING,
R/AT: CHALUKYA NAGAR, GADAG
ROAD, HUBBALLI.
...APPELLANT
(BY SRI. N.R. KRISHNAPPA, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
KESHWAPUR POLICE STATION, HUBBALLI,
NOW REPRESENTED ITS STATE PUBLIC PROSECUTOR,
Digitally signed
HIGH COURT OF KARNATAKA, DHARWAD,
by
YASHAVANT
DHARWAD.
NARAYANKAR
Location: HIGH ... RESPONDENT
COURT OF
KARNATAKA (BY SRI. M.B. GUNDAWADE, ADDL.SPP.)
THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C.,
IS SEEKING TO CALL FOR RECORDS, AND SET ASIDE THE
JUDGMENT AND SENTENCE DATED 26.03.2022 AND
30.03.2022 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI IN SC
NO.114/2019 CONVICTING AND SENTENCING FOR THE
OFFENCE PUNISHABLE U/S. 498A, 302, 201 R/W SECTION 34
OF IPC AND ACQUIT THE APPELLANT/ACCUSED NO.1 FROM
THE CHARGES LEVELED AGAINST HIM.
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CRL.A No. 100611 of 2022
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 06/08/2024 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, C M JOSHI, J.,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
HON'BLE MR. JUSTICE C M JOSHI
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI) This appeal is filed by the convict/accused No.1 in SC No.114/2019 assailing the judgment of conviction and order of sentence for the offences punishable under Sections 498A, 302 and 201 of IPC in Crime No.21/2018 of Keshvapur police station, Hubballi by the learned First Addl. District and Sessions Judge, Dharwad sitting at Hubballi dated 26.03.2022.
2. The factual matrix of the case is as below:
The accused No.1-Kishore married the deceased Laveena who is the daughter of PW.1-Mariyaraj Channayya Janamala of Guntur District, Andhrapradesh on 06.05.2011. The accused No.1 and the deceased were staying at Hubballi and accused Nos.2 to 4 are the parents and sister of accused No.1. The prosecution alleged that all -3- NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 the accused were suspecting the character of deceased Laveena and used to abuse her and subject her to cruelty.
The accused No.1 and the deceased started to stay in a separate house at Hubballi and even then the accused had continued to ill treat deceased Laveena and used to assault her. The father of the deceased Laveena (PW.1) took the deceased to his place and accused No.1 went there and assured PW.1 and others that he would look after the deceased in a proper manner and brought her back to Hubballi. After 3-4 days of the deceased and accused returning to Hubballi, the accused No.1 found that the deceased had a mobile handset; came to know that she had talked to PW.9; suspected her character and had beaten her by cuttin her hair. It is alleged that on 23.03.2018, between 10 a.m. and 3.30 p.m., the accused throttled the deceased Laveena and strangulated her with a water heater wire and caused her death. Thereafter, in order to conceal the crime, hanged a veil to the wooden beam of the house and another piece of it was cut and placed near the body of the deceased along with a knife so as to depict that it is an incident of -4- NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 suicide. Later, with the help of the neighbors, he took the deceased to KIMS Hospital and represented that his wife Laveena has committed suicide.
3. On the same day morning, the accused No.1 had contacted the PW.1, the father of the deceased over phone who was staying in Andhra Pradesh and informed that the deceased was talking to somebody else over the phone and he had beaten her and requested him to come to Hubballi and take his daughter back. Again a few minutes later, he called PW.1 and informed that he would advise and correct the deceased Laveena and on the same day evening he again called PW.1 and informed that Laveena had committed suicide in the house, and she is shifted to KIMS Hospital, Hubballi. The PW.1, his wife and others came to Hubballi on 24.03.2018 at about 12 noon and thereafter he lodged a complaint to the police as per Ex.P1. In Ex.P1, it was stated that on being informed by the accused No.1 at about 7 p.m. on the evening of 23.03.2018 about the death of their daughter Laveena they came to Hubballi on 24.03.2018 by train and went to the house where accused No.1 and -5- NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 Laveena were staying and found that by the side of the cot, the hairs of the deceased, a knife and veil which was cut had fallen; the remaining portion of the veil was tied to rafter of the roof. Therefore, PW.1 suspected the version of the accused No.1; they went to the mortuary of the KIMS hospital and found that there was bleeding by the ears and there were injuries on the neck, arms, thighs of the deceased; lodged complaint alleging that the accused No.1 and his family members have committed the murder and depicted the same as an incident of suicide; and since they came from Andhra Pradesh, there was a delay in filing the complaint.
4. The said complaint was registered in Crime No.21/2018 by Keshvapur Police and investigation was taken up by the PW.21-Babuddin. In fact, the PW.21 had received information at about 7 p.m. on 23.03.2018 from KIMS Hospital as per EX.P.32 and when he went to the hospital none were there and therefore, he went to the house of the deceased, the doors were open and he closed the door and secured scene of offence. On the next day at about 2.15 -6- NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 p.m., when the PW.1 came and lodged complaint as per Ex.P.1, he took up the further investigation in the matter. Since, the incident had taken place within 7 years of the marriage, he requested Tahasildar-PW.20 to conduct the inquest mahazar. Accordingly, PW.20 in the presence of the PW.13 and another witness conducted the inquest as per Ex.P.24. A spot mahazar was also drawn in the presence of PWs.11 and 16 as per Ex.P.2 and M.O.Nos.1 to 4, which are the half cut veils, knife and the hair were seized from the spot. After the postmortem by PW.19 Dr Sunilkumar, the body was handed over to the PW.1. On 26.03.2018, the accused No.1 was produced by his staff, arrested and on the basis of his voluntary statement, the PWs.12 and 17 were called to the police station and in their presence, the accused No.1 led to his house and produced the M.O. Nos.5 to 9 which are the mobile phone of the deceased, heater coil with wire, broomstick with a steel handle, scissor and hair. The mahazar was drawn as per Ex.P.19. The portion of the voluntary statement is marked at Ex.P.34. The M.O. No.6 and 7 were sent to the medical officer and opinion was -7- NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 obtained by him as per Ex.P.29. After recording the statements of the witnesses, securing call detail records of mobile phone of the deceased and after obtaining of the relevant documents, he filed charge sheet against the accused.
5. It appears that accused Nos.2 to 4 were arrested later and they were released on bail. The accused No.1 remained in judicial custody till date.
6. On committal, the trial Court framed charges against the accused Nos.1 to 4 for the offences punishable under Sections 498A, 302 and 201 r/w Section 34 of IPC. The accused having claimed a trial, the case entered into trial and in order to prove the guilt of the accused, prosecution examined PWs.1 to 22. Ex.P1 to P.40 and M.O.Nos.1 to 9 were marked in evidence. The statement of the accused under Section 313 of CPC was recorded by the trial Court. The defendants did not adduce any evidence. After hearing the arguments by the learned Addl. Public Prosecutor and learned counsel for the accused, the trial -8- NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 Court has convicted accused No.1 for the offence punishable under Section 498A, 302, 201 r/w 34 of IPC and sentenced him for i) life imprisonment and a fine of Rs.40,000/- for the offence under Section 302 of IPC; ii) Rigorous imprisonment for five years and a fine of Rs.5,000/- for the offence under Section 201 of IPC; iii) rigorous imprisonment for a term of two years and fine of Rs.5,000/- for the offence under Section 498A of Indian Penal Code with adequate default sentences for non payment of fine and ordered that the sentences to run concurrently; iv) The accused Nos.2 to 4 were acquitted.
7. Being aggrieved by the judgment of conviction and order of sentence, accused No.1 is before this Court in appeal.
8. The arguments by the leaned counsel appearing for the appellant Sri.N.R.Krishnappa and learned Addl. SPP Sri.M.B.Gundawade for respondent State were heard.
9. The learned counsel appearing for the appellant would submit that the testimony of the PWs.1, 2 and 19 are -9- NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 important in the matter. It is submitted that the incident had taken place on 23.03.2018 and evidently, the accused No.1 had married deceased about 7 years earlier. There is no such antecedents if illtreatment which could be brought out by the prosecution during the said period of 7 years. It is contended that the entire case of the prosecution is based on circumstantial evidence and all the circumstances pointing that accused No.1 alone could have committed offence are not proved. The sole testimony of the PW.1 that accused No.1 had informed him over phone; that he had obtained the deceased and would correct her is not corroborated by any other evidence and therefore, the reliance placed by the trial Court on the testimony of PW.1 is improper. He submits that the conduct of the PWs.1 and 2 who are the father and mother of the deceased is doubtful, in as much as they do not go to see the body of the deceased in the mortuary of the KIMS hospital but they directly visited the house of the deceased on their arrival. This conduct is not natural and therefore their testimony is not of sterling quality. It is pointed out that the neighbors who are
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 examined as PWs.3 to 8 have turned hostile to the prosecution and therefore, the interested testimony of the relatives of the deceased cannot be believed, there is no iota of evidence to show that accused No.1 ill treated the deceased Laveena. It is pointed out that the alleged recovery of the heater coil wire at the instance of the accused No.1 and that it was used for strangulating the deceased Laveena is not established by prosecution. He submits that the ligature mark on the neck of the deceased Laveena is not co- related to the M.O.6. He points out that the veil which was found at the spot is not excluded from causing ligature mark on the neck of the deceased. It is pointed out that the M.O.Nos.1 to 9 were not sent to the FSL for examination and therefore, the nexus between these articles and the cause of the death of the deceased is not established beyond all reasonable doubts. Lastly, he pointed out that the call details of the accused to show that he had called the PW.1 is not produced and therefore, all the circumstances pointing out that accused No.1 alone committed the murder of the
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 deceased is not established by the prosecution. In support of his contention, he placed reliance on the following decisions:
1) Sohel Mahaboob Shaik v. State of Maharashtra1
2) Shivaji C Patil v. State of Maharashtra2
3) Tomaso Bruno and another v. State of U.P.3
4) Jayadeb Patra and others v. State of West Bengal4
10. Per contra, learned Addl. SPP Sri.M.B.Gundawade submits that the body of the deceased Laveena showed eight injuries which could not be self- inflicted injuries and this would clinch the fact that the death of the deceased Laveena was a homicidal death. Regarding the chain of circumstances, the learned Addl. SPP would submit that the marriage of accused No.1 and the deceased is not in dispute and that they were staying separately from the accused Nos.2 to 4 since about six 1 (2009) 12 SCC 588 2 AIR 2021 SC 1249 3 2015 Crl.L.J.1690 4 AIR 2013 SC 2878
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 months prior to the incident is not disputed by the defence. He submits that about six months prior to the incident, the accused had ill treated the deceased Laveena and therefore, she had returned to her parental house is proved. The accused went there and brought her back and they were staying in a rented tenement at Chalukya Nagar, Hubballi. These aspects are not disputed by the defence. Therefore, he submits that when the accused No.1 and deceased were staying together in the house and when the neighbors have stated that they had seen deceased Laveena and accused No.1 living together, it is incumbent upon the accused No.1 to explain as to how the deceased died. He points out that the testimony of the PWs.1 and 2 would clinchingly show that on the date of incident, the accused had called the PW1 and informed that she was speaking to somebody else over the mobile and that he had beaten her and asked PW1 to take her back. After few minutes accused had informed that he would deal with the matter and there is no necessity of PW.1 coming to Hubballi. This say of PWs.1 and 2 would show that accused No.1 was in the company of the deceased
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 within a few hours prior to her death. On the same day evening at about 7 p.m. accused No.1 had informed PW.1 that the deceased Laveena had committed the suicide. Therefore, the learned Addl. SPP would submit that it was incumbent upon accused No.1 to explain what had happened to the deceased resulting in her death. He further submits that the medical evidence would undoubtedly show that it was a homicidal death and therefore the defence of the accused that it was a suicide cannot be accepted. Further, he points out that the accused led for discovery of the heater cable and also the mobile phone of the deceased. Obviously, the mobile phone of the deceased was given to her by PW.9 who was a neighbour and the SIM was purchased in the name of PW.10. Both these witnesses are independent witnesses and as such their testimony is believable. He submits that the recovery of the mobile phone, the steel handled broomstick which the accused had used for assaulting the deceased was also recovered under the mahazar at Ex.P.19 in the present of PWs.12 and 17.
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 This recovery also cannot be brushed aside and it conclusively shows the involvement of the accused.
11. The next point urged by the learned Addl. SPP is that the ligature mark on the neck of the deceased was horizontal and complete, which indicates strangulation but not hanging. Coupled with this, the opinion of the PW.19 as per Ex.P.29 also indicates that the strangulation by M.O.6 has caused the death of the deceased Laveena. He points out that there are no suggestions to PW.29 that the ligature mark is that of the veil which was found at the spot. Therefore, he submits that the motive for commission of the offence, the presence of the accused with the deceased at the time of the incident and his subsequent conduct in informing the PWs.1 and 2 that it was a suicide and the injuries found on the body of the deceased coupled with the recovery of the ligature material and other articles at the instance of the accused would show the chain of circumstances which undoubtedly point to the crime being committed by accused No.1. Therefore, he submits that the judgment of the trial Court deserves to be confirmed.
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12. Having heard the learned counsel for the accused and learned Addl. SPP, the points that arise for our consideration are:-
a) Whether the death of the deceased Laveena is homicidal death?
b) Whether the prosecution has established that accused and accused alone caused the death of deceased?
c) If so, whether it is homicidal death amounting to murder or not amounting to murder?
13. The law regarding the circumstantial evidence is fairly settled by the Apex Court in Sharad Birdhi Chand Sarda Vs. State of Maharashtra5. The Apex Court has laid down the golden principles that govern the circumstantial evidence in following words.
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
5
1984(4) SCC 116
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the observations were made "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
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154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
14. In the case on hand PW.1 Mariyaraj, PW.2 Mariyamma are the father and mother of the deceased. PWs.3 to 7 and 18 are the neighbours, who only say that the accused No.1 and the deceased were staying together in the house and they do not know anything about the accused committing the murder. However, all these witnesses say that they had seen the accused and deceased living together and they only come to know about the death of the deceased Laveena on the evening of 23.03.2018.
15. PW.9 is Madhukumar was also a person living in the vicinity and he had provided the mobile phone to the deceased when she had requested so to enable her to talk to her parents. The said phone contains the SIM in the name of PW.10-Abhishek.
16. PWs.11 and 16 are the panchas of the spot mahazar which is marked as Ex.P.2 under which M.O.s. 1 to
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 4 are seized from the spot. Both these witnesses support the case of the prosecution. The PWs.12 and 17 i.e. Sudhakar and Kirankumar are the panchas of the seizure mahazar which is at Ex.P.19. M.Os.6 to 9 were recovered under Ex.P.19. Both these witnesses are the relatives of the PW.1 and therefore, their evidence need to be appreciated with caution. PW.13 is the panch of the inquest mahazar and PW.20 happens to be a Tahasildar who conducted inquest mahazar as per Ex.P.24. These witnesses are of importance in order to ascertain the injuries found on the body of the deceased. PW.14 happens to be the Assistant Executive Engineer of the PWD who prepared the sketch of the spot at the instance of the investigating officer as per Ex.P.25. PW.15 happens to be the person, who transcribed the complaint at Ex.P1 at the instance of the PW.1, who had spoken in Telugu. PW.22 is also the person who transcribed the statement of the witness at the instance of the PW.20- Tahasilar while preparing the inquest mahazar. The PW.19- Dr.Sunil Kumar Biradar is a professor of Forensic Medicine Department at KIMS Hospital, Hubballi who conducted
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 autopsy and gave report as per Ex.P.28 and later gave opinion as per Ex.29 after examining the ligature material and the broomstick which are at M.Os.6 and 7. Re: Point No. 1
17. In ascertaining whether the death of deceased Laveena was homicidal or not the testimony of the PWs. 12, 17, 19 and 20 would play a vital role. The postmortem report at Ex.P.28 would show the following external injuries on the body of the deceased.
"Ligature mark: Horizontally placed complete ligature mark present over the neck situated above the level of thyroid cartilage, measuring 27cm x 1.5cm, situated 8cm below right ear lobule, 5cm below chin and 5cm below left ear lobule. The skin over ligature mark is dry, abraded and hemorrhagic.
External injuries:
1. Multiple abraded contusions measuring 1cm x 0.5cm to 0.5cm x 0.3cm present in front of neck at places.
2. Abrasion measuring 1.5cm x 0.5cm, present over back of left shoulder.
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3. Abraded contusion measuring 8cm x 3cm present over front and outer aspect of right arm, situated 4cm above right elbow joint.
4. Abrasion measuring 2cm x 1cm present in back of left elbow.
5. Abraded contusion measuring 5cm x 3cm present over front and inner aspect of middle third of right thigh.
6. Contusion measuring 4cm x 3cm present over front and inner aspect of middle third of left thigh.
7. Multiple abraded contusions measuring from 5cm x 3cm to 2cm x 1cm present in front of right leg at places.
8. Multiple abraded contusions measuring from 4cm x 2cm to 2cm x 0.5cm present left leg at places."
18. It is pertinent to note that the postmortem report also shows that Thyroid cartilage and Hyoid bone are intact and ultimately PW.19 opined that the death is due to asphyxia as a result of ligature strangulation. Obviously, if it was a case of suicide, there would not have been such external injuries on the body of the deceased. The ligature
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 mark could not be horizontal as is found by PW.19 in Ex.P.28. If it was a case of hanging, obviously ligature mark would be incomplete and oblique.
19. The PW.13-Janaki is a neighbour of the accused and the deceased. In her testimony she says that she found injuries on the chest, neck, right hand, thighs, below the knee on the body of the deceased. PW.20 also speaks about the injuries found on the body of the deceased. The cross examination of PWs.13 and 20 do not show anything which would discredit their testimony. Obviously they were not interested witnesses in any way. Though, a searching cross examination is made to PW.20 nothing is elicited to discredit his testimony. A perusal of P.24-inquest mahazar, does not show any of the suggestions made by the defence to PW.20.
20. Therefore, we come to the conclusion that the death of deceased Laveena is a homicidal death. Re: Point No. 2
21. The set of circumstances which undoubtedly point to the accused No.1 to be the perpetrator of the crime
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 are to be examined by this Court. PWs.1 and 2 who are the parents of the deceased-Laveena say that the marriage of the deceased Laveena and accused No.1 had taken place on 06.05.2011 at Tadapalli of Andra Pradesh and thereafter deceased came to the matrimonial home at Hubballi. Initially, accused Nos.1 to 4 and the deceased were living together and after about one year the accused started to harass the deceased and they were suspecting the deceased when she talked to others. The deceased used to inform the same to PWs.1 and 2 and on several occasions, they had advised the accused to look after her properly. They even had paid certain money to the accused No.1 and accused No.1 and the deceased had begotten a child. The accused No.1 and the deceased started living separately at Chalukya Nagar and then the accused No.1 increased the harassment to her and therefore, the deceased was taken back to parental house. After about six months, the accused No.1 assured the PWs.1 and 2 that he would look after the deceased properly and then after insistence by PWs.1 and 2, accused stayed in their house for about 3-4 months and
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 then brought the deceased to Hubballi. The testimony of the PWs.1 and 2 in this regard is consistent. The cross examination is only in respect of the denial of such harassment rendered to the deceased.
22. The testimony of PW.4-Annapurna who is an immediate neighbour shows that accused and deceased were living together and on the date of incident she came to know at about 5.30 p.m. that the deceased Laveena has died. The testimony of another immediate neighbour Smt. Shanthamma who is examined as PW.6 is also on the same lines. PW.9-Madhukumar was also a neighbour and he says that the deceased had informed him that the accused was harassing the deceased and therefore, she was in need of a mobile phone and that she assured that she would return it. Though his testimony is not in respect of the harassment or he coming to know about the murder, his testimony supports the say of PWs.1 and 2 as far as harassment is concerned. Therefore, it is clear that there was harassment to the deceased prior to her death. The circumstance that the accused was harassing the deceased is definitely a
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 circumstance which would go against the accused. This would also show the motive of the accused to commit the offence.
23. The PW.8-Jayakumar is another person living in the vicinity of the house of accused No.1 and the deceased. He states that on the date of the incident at about 5 p.m. he had gone out from his house and the accused No.1 came out of his house screaming that his wife had died. He says that accused No.1 and deceased were living cordially but he does not know anything about the ill treatment meted out by the accused to the deceased. He was treated hostile by the prosecution. In the cross-examination, he denied that though accused had committed the murder, he had represented that she had committed suicide. This evidence of the PW.8 would clearly indicate that at about 5.30 p.m., accused No.1 had come out of his house saying that the deceased Laveena had died. His evidence neither supports the version that it was the case of hanging as depicted by the accused nor a murder. If at all the accused had come
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 out of his house saying that it was suicide, definitely he would have shouted the same when he met the PW.8.
24. The testimony of the PWs.1 and 2 would show that on the date of the incident, the accused had called PW.1 thrice and in the morning he had informed that the deceased is talking to some other people and she is having illicit affairs. The fact that the accused was suspecting the fidelity is the deceased is categorically stated by them.
25. The testimony of the PW. 9 show that the deceased Laveena had informed him about the harassment meted out to her and she had asked the PW.9 to provide a mobile hand set. Therefore, he had given his spare mobile hand set to the deceased with a SIM standing in the name of the PW.10-Abhishek, for which act the accused No.1 had questioned the PW.9 and he had informed the accused No.1 that pursuant to the request made by the deceased he had given a mobile phone to talk to her parents. This version is also corroborated by the testimony of the PW.10 that he had provided the SIM to the PW.9. He also states that many
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 people had gathered near the house of the accused at about 5 PM had came to know that the accused had murdered and hanged his wife. Further, it is the say of the PW.10-Abhishek that when he came to know about the death of deceased Laveena he went to the house of the accused and at the request of the neighbours he shifted the deceased to the hospital in an auto rickshaw, with the help of accused No.2 and 3.
26. On the evening of 23.03.2018, while PW.8- Jayakumar was going to chicken shop he witnessed the accused coming out of his house screaming that the deceased Laveena had died. Though, he does not support the remaining version of the prosecution case, this testimony corroborates the testimony of the PW.10 in this regard. The deceased having the mobile phone is spoken to by PW.9. Thus, it is evident that on the evening of 23.03.2018, the accused had tried to depict the death of Lavina as suicide, as stated by the PWs.1 and 2, which is corroborated by the testimony of the PWs.8 and 10. Therefore, there is no reason to doubt the testimony of
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 PWs.1 and 2 that the accused No.1 had called the PW.1 informing that the deceased had committed the suicide.
27. This would render the testimony of the PWs.1 and 2 believable so far as phone calls made by accused No.1 is concerned. The testimony of the PW.1 would indicate that the accused had called the PW.1 at 7 a.m. saying that he had beaten the deceased since she was talking to others over phone. The accused No.1 again called back PW.1 and informed that he would take care of the deceased. The next call made by the accused to the PW.1 is in the evening. It is elicited in the cross examination of PW.1 that the deceased had called him at abut 10 a.m. on the date of the incident. This would clearly show that accused No.1 and the deceased were alone in the house and there was a quarrel between them. In the cross examination of the PW.1, it was suggested that the deceased had illicit relationship with a neighbour and the accused had informed the PW.1 to advise the deceased Laveena. It is suggested that since, the PW1 had advised the deceased to desist her relationship with others, she had committed the suicide. Obviously, these suggestions
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 are denied by the PW.1. When the said defence of the suicide is shattered by the medical evidence, it is clear that it was incumbent upon accused No.1 to explain as to what had happened resulting in injuries sustained by the deceased. It is not the defence of the accused that somebody else had assaulted the Laveena. On the other hand, it is the consistent stand of the accused that it was a case of suicide by hanging.
28. The next circumstance which is of relevance is the recovery of M.Os.6 to 9 at the instance of the accused No.1. PW12 and PW17 are the panchas to the seizure mahazar, which is at Ex.P19. PW12-Sudhakar states that he is a relative of PW1. In his examination-in-chief, he states that on 26.03.2018 the police had called him and the PW17 near the house of the accused No.1 and there the accused No.1 produced M.Os.6 to 9 and mahazar was prepared as per Ex.P19. In the cross-examination, it is elicited that the accused No.1 had unlocked the door of his house and he denies the suggestion that the accused did not produce any of the articles. Though he expressed his ignorance about the
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 SIM card in the mobile and the contents of the complaint, his evidence clearly establish that the accused No.1 and the accused Nos.2 to 4 were living separately in two different houses. Much of the cross-examination is in respect of spot of incident for which the spot mahazar was conducted 2 days earlier, to which he was not a witness. It is pertinent to note that there is nothing in the cross-examination which falsifies the recovery of M.Os.6 to 9 at the instance of the accused No.1.
29. Similarly, the testimony of the PW17-Kirankumar though show that he is the brother of the PW2, the cross- examination do not show anything to doubt his testimony. Therefore, the recovery of M.Os.6 to 9 at the instance of the accused No.1 in the presence of PW12 and PW17 as per Ex.P19-seizure mahazar cannot be disputed. Ex.P19 would also show that the recoveries were made on 26.03.2018 between 9.30 a.m. and 10.30 a.m. at the house of the accused No.1. The photographs at Ex.P.20 to 23 also show the same. M.Os.6 to 9 are the heater wire, which is the ligature material, a broomstick with metallic handle, a
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 scissor and a Samsung mobile of the deceased-Laveena. Obviously, these were not seized at the time of the spot mahazar on 24-3-2018 since the death was not suspected to be murder.
30. The above circumstance clearly indicates that an effort was made by the person who had committed assault on the deceased to appear the incident as an act of suicide but not of strangulation. This aspect gets impetus from the injuries found on the dead body of the deceased as depicted in the postmortem report at Ex.P28. When we examine the above circumstances, it is clear that the accused No.1 alone could have committed the offence. The above discussion would establish the following aspects:
a) The acrimony between deceased and the accused and the frequent quarrels between them is spoken to by the PW1 and PW2 and the fact that the deceased had returned to her parental house for about six months and accused No.1 also stayed there for about three months and thereafter brought her back and started living separately from accused Nos.2to 4.
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022
b) The accused and the deceased alone were staying in the house situated at Chalukya Nagar, which is not disputed by the defence.
c) The accused No.1 calling upon PW1 twice in the morning on 23.03.2018 and again calling in the evening to inform that the deceased had committed suicide cannot be doubted. Even though the investigating officer could have secured the call details of the accused to establish this aspect, the lacuna in the investigation cannot be a ground to disbelieve the case of the prosecution. None others had informed PW1 and PW2 about the death of the decased- Laveena. The PW1 and PW2 reached Hubli at about 12.00 p.m. by train on 24-3-2018.
d) The injuries on the body of the deceased and the cause of death cannot be termed as self-inflicting injuries. The postmortem report at Ex.P28 categorically and conclusively overrules the possibility of suicide. The injuries found on the dead body of the deceased cannot be caused if it was a case of suicide. According to PW19-Medical Officer, who conducted the postmortem, the broomstick seized can
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 cause injuries found on the dead body of the deceased and the ligature mark may be caused by heater wire. Therefore, there cannot be any doubt about the homicidal death.
e) The recovery of the mobile phone of the deceased and the testimony of PW9 and PW10 that they had given mobile handset and the SIM card, would undoubtedly show that the deceased was under stress and as she had confidence in PW9, she made a request for a mobile phone. This would also reflect about the harassment by the accused No.1 on the deceased by restricting her not to be in touch with her parents. The recovery of the wire and the fact that it may be a ligature material, as opined by PW19-Medical Officer, is a strong circumstance which would implicate the accused.
f) Another prong of the argument of the defence that the seized articles were not sent to the FSL for examination is not sustainable in as much as no purpose would have served by it. Ex.P28-postmortem report shows that there were no lacerated injuries but only abrasions and contusions. Therefore, the possibility of finding bloodstains
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 on the broomstick is remote. Therefore, relevance of sending the seized articles for the FSL is not established and as a result non-obtaining of FSL report cannot be termed as fatal to the case of the prosecution.
g) The evidence shows that the accused No.1 was absconding after the incident but it cannot be a circumstance which would establish the innocence of the accused. Obviously, it was the accused No.1 who had called the PW1 to inform that the deceased-Laveena had committed suicide.
h) The investigating officer, though obtained call details record of the mobile phone of the deceased-Laveena, it was not marked in the evidence since a certificate required under Section 65B of the Evidence Act was not furnished. However, there was no impediment for the accused No.1 to get it marked in order to establish that the deceased- Laveena had illicit relationship with another person. The failure to secure the call details record of the accused No.1 to establish that it was the accused No.1, who had called the PW1 thrice on the date of the incident, cannot be termed to
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 be fatal to the prosecution for the simple reason that nothing is elicited in the cross-examination of PW1 that somebody else had informed him about the death of Laveena.
i) The learned counsel for the appellant submitted that non-obtaining the opinion of PW19-Medical Officer in respect of Veil, which was seized at the time of the spot mahazar was another lacuna of the prosecution's case. Nothing prevented the defence to seek opinion of the PW19- Medical Officer while he was being cross-examined. It is the case of the prosecution that M.O.6 was used for the purpose of strangulating deceased and therefore, it was sent for the opinion of the expert. Therefore, this circumstance cannot be of any relevance to doubt the case of the prosecution.
31. In the light of the above discussions, we are of the view that it was incumbent upon the accused No.1 to explain as to how the deceased had sustained the injuries. On the other hand, the accused No.1 has taken up contention that the death of deceased-Laveena was due to suicide. Hence, as rightly argued by the learned Additional
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 SPP, the accused No.1 has to discharge his burden as required under Section 106 of the Evidence Act.
32. The principles laid down in the case of Sohel Mahaboob Shaik (referred supra) cannot be applied to the case on hand since the circumstances in that case were different and the accused therein had not taken up the contention of suicide by the deceased. Similarly, the judgment in the case of Shivaji C Patil (referred supra) also cannot be made applicable to the case on hand since it was a case wherein no marks on the body were found and it was a doubtful case of murder or suicide. The judgment in the case of Tomaso Bruno (referred supra) in respect of admissibility of the electronic evidence does not have any bearing since none of the electronic evidence is marked with a certificate under Section 65B of the Evidence Act. We are aware that only the photographs, which were taken at the time of conducting mahazar were subject matter of Section 65B certificate produced in this case. The judgment in the case of Jayadeb Patra (referred supra) also cannot be
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 helpful to the defence since it was a doubtful case of consuming poison.
33. The last point that requires our consideration is whether the homicidal death of deceased-Laveena amounts to murder or not. Obviously, the accused No.1 had reason to grudge against the deceased by suspecting her fidelity. Several such incidents had taken place and the deceased had returned to her parental house for about six months and thereafter the accused No.1 took her back and they were living in a separate house. The accused No.1 had found a mobile phone with the deceased-Laveena, which she secured from PW9.
34. The evidence on record shows that the accused has called the PW.1 at 7 a.m. in the morning and again, he called the PW.1 and informed that he had beaten up the deceased and he would take care of her. Evidently, when he had called the PW.1, the deceased was alive. The postmortem report which is at Ex.P.28 would not show the time of death since the body was kept in cold storage prior to
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 postmortem and the body contained about 100 ml of partially digested rice meal. Therefore, obviously, it was subsequent to the phone calls made by the accused No.1 to the PW.1 in the morning. Thus, it is evident that the accused had in his mind that he should teach a lesson to the deceased. The fact that the accused No.1 had called PW.1 is mentioned in the FIR as well as in the testimony of the PWs.1 and 2. Therefore, it cannot be said that any of the exceptions available under Section 300 of IPC could be a possible circumstance. More over, the accused had tried to depict as an incident of suicide. Under these circumstances, we have no doubt in our mind to hold that the deceased had an intention to commit the murder of the deceased. Beating the deceased with broomstick and then strangulating her would show his intention to annhilate the deceased. Hence, we hold that the circumstantial evidence clearly establish that the accused had committed the culpable homicide amounting to murder.
35. The trial Court has rightly come to the conclusion that the accused had committed the offence punishable
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NC: 2024:KHC-D:14328-DB CRL.A No. 100611 of 2022 under Sections 498A, 302 and 201 of IPC. It has considered all the circumstances, which are available on record and as convicted the accused. Since, no arguments are advanced in respect of the quantum of punishment; we do not find any reason to dwell into the same. Consequently, the points raised as above are answered accordingly and the following order is passed:
ORDER
i) The appeal is dismissed.
ii) The judgment of conviction and order of sentence passed by the trial court in S.C.No.114/2019 is hereby confirmed.
Sd/-
(B.M.SHYAM PRASAD) JUDGE Sd/-
(C M JOSHI) JUDGE HMB- Up to para 25 YAN- Para 27 to 32 HMB-Para 33 till end.
List No.: 1 Sl No.: 21